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PROTECTING CHILDREN FROM INTERNET 

PORNOGRAPHERS ACT OF 2011 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

ON

H.R. 1981 

JULY 12, 2011 

Serial No. 112–60 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

DEBBIE WASSERMAN SCHULTZ, Florida 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 12, 2011 

Page 

THE BILL 

H.R. 1981: The ‘‘Protecting Children from Internet Pornographers Act of 

2011’’ ..................................................................................................................... 3 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 14 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 15 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 17 

WITNESSES 

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

Children 

Oral Testimony ..................................................................................................... 24 

Prepared Statement ............................................................................................. 27 

Michael J. Brown, Sheriff, Bedford County Sheriff’s Office 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 37 

Marc Rotenburg, President, Electronic Privacy Information Center 

Oral Testimony ..................................................................................................... 42 

Prepared Statement ............................................................................................. 44 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 19 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 75 

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 79

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 81 

Letter from Douglas C. Gillespie, President, Major County Sheriffs’ Association here ................................................................................................................ 84 

Page

IV 

Letter from Chuck Canterbury, National President, National Fraternal Order 

of Police ................................................................................................................. 85 

Letter from Mai Fernandez, Executive Director, The National Center for 

Victims of Crime .................................................................................................. 86 

Letter from Paulette Sullivan Moore, Vice President of Public Policy, the 

National Network to End Domestic Violence (NNEDV) ................................... 87 

Letter from Penny Nance, Chief Executive Officer and President, Concerned 

Women for American Legislative Action Committee ........................................ 88 

(1) 

PROTECTING CHILDREN FROM INTERNET 

PORNOGRAPHERS ACT OF 2011 

TUESDAY, JULY 12, 2011 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to call, at 9:59 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Smith, Goodlatte, Lungren, Poe, Marino, Gowdy, Conyers, Scott, Cohen, Chu, and 

Quigley. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Sarah Allen, Counsel; Allison 

Halatei, Deputy Chief of Staff; Sean McLaughlin, Chief of Staff and 

General Counsel; Tony Angeli, Counsel; Lindsay Hamilton, Clerk; 

(Minority) Bobby Vassar, Subcommittee Chief Counsel; Lilliana 

Coronado, Counsel; Joe Graupensberger, Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will be in order. 

Without objection, the Chair will be authorized to recess the 

Committee during votes today. 

Hearing none, so ordered. 

I am not using the prepared statement that was given to me 

today by the staff. I move myself 5 minutes. 

This is the second hearing that this Subcommittee has had on 

this subject. The bill that is before us today, I think it is very bad 

policy. And I will say right now that I will do my best to kill it, 

should it proceed any further. 

I do not believe that there should be a statutory declaration on 

how long Internet service providers should maintain records. That 

should be a business decision that they should make. 

Furthermore, I am very disturbed at the administrative subpoena power that is given to the Marshals Service by this bill. 

People may recall that I introduced a similar bill when I was the 

Chair of the Committee and withdrew it, because I was concerned 

for both of these points, and that concern remains. 

People should also be aware that I fought vigorously to avoid 

granting more administrative subpoena power to any Federal law 

enforcement agency during both the PATRIOT Act consideration 

and the PATRIOT Act reauthorization in 2005 and 2006. 

2 

This bill strikes out in both respects. It is my feeling that the administrative subpoena power that is given to the Marshals Service 

will allow not only the Marshals Service but any other law enforcement agency with existing administrative subpoena power to rummage through Internet service providers’ records, whether it is on 

the subject of child pornography or any other subject relating to 

law enforcement, and that we should restrict severely administrative subpoena powers that are given to law enforcement for, particularly, the gathering of evidence. 

This is not to say I am not concerned about the child pornography issue. I think my record has been very clear from the beginning of my service in Congress that I have fought to strengthen 

legislation to allow law enforcement to crack down on child pornography. And as the author of both the Child Protect Act of 2003 and 

the Adam Walsh Act of 2007, I think my record is quite clear on 

this issue. 

However, it seems to me that this goes far beyond the issue of 

trying to prevent people from using the Internet to purvey child 

pornography, which I think is the most disgusting smut of all the 

smut that ends up being purveyed, whether it is by electronic 

means or other means. 

We ought to forget about having a statutory retention passed by 

Federal law. We ought to forget about granting the Marshals Service administrative subpoenas. 

This does not strike at the problem in an effective manner, and 

it runs roughshod over the privacy rights of people who use the 

Internet for thousands of lawful purposes. And that is why this bill 

ought to be defeated and be put in the dustbin of history. 

And I now yield to the gentleman from Virginia, Mr. Scott, the 

Ranking Member. 

[The bill, H.R. 1981, follows:] 

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HR1981-11.eps
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Mr. SCOTT. Thank you, Mr. Chairman. 

I will read the prepared statement, but I must say I am pleased 

to join you for the hearing. 

The Crime Subcommittee convenes this morning to examine the 

bill H.R. 1981 that, among other things, imposes an 18-month data 

retention requirement on non-wireless Internet service providers 

known as ISPs, gives the United States Marshals Services administrative subpoena power, and substantially increases penalties for 

certain Federal sex offenses. 

The legislation, known as Protecting Children From Internet 

Pornographers Act of 2011, does many things that I suspect that, 

if passed, it may not actually be the most effective way of protecting children from Internet pornographers. 

Section 4 imposes an 18-month mandate on certain ISPs to retain IP addresses. The question that remains unanswered is 

whether this data retention mandate, which imposes unknown 

costs on ISPs, will add anything significant to the process. 

When Congress imposes a costly mandate on private industry, 

there ought to be a corresponding and significant benefit to law enforcement. The information before me fails to demonstrate that the 

expansive policy proposed in H.R. 1981 will provide that benefit. 

Indeed, the GAO reports that currently in 80 percent of investigations, law enforcement officials are already able to obtain the 

data that they need from ISPs. In the remaining 20 percent, they 

are virtually always able to obtain information through other 

means. This is most likely because the majority of ISPs already 

maintain data from 6 to 12 months. 

In light of this, we must balance the additional marginal benefit 

that law enforcement may receive by extending the mandate to 18 

months against the countervailing costs, privacy, and security concerns that such policy implicates. 

Rather than address the myriad of factors that pose challenges 

to child pornography prosecutions, the bill mistakenly focuses entirely on data retention. The GAO’s report on the Protect Act 

makes it clear the backlog in forensic examination of computers is 

the real issue in these cases, and the bill does nothing to address 

that problem. 

According to the GAO, it can take up to a year for the FBI to 

conduct a forensic evaluation of a suspect’s computer. This bill actually creates more cases in forensic examinations that will be necessary without providing any additional resources. The legislation 

seems to ignore that the real issue is in fact resources. 

So we must ask ourselves about the utility of adding more data, 

and older data at that, to this queue and exacerbate what is already a significant backlog. 

It is undisputed that the overwhelming majority of the 230 million Americans that use the Internet are law-abiding. The ISPs assign millions of IP addresses every day to these users. And when 

one is looking for a needle in a haystack, the last thing you need 

is more hay. This is exactly what section 4 would do, accumulate 

more hay without providing any more tools to sort through it. 

The low number of prosecutions also underscores the bill’s misplaced focus on data retention. The ISPs provide law enforcement 

with well over 100,000 cyber-tips every year. These tips require the 

15 

preservation of not just the IP address of the suspect, but also as 

much content from the suspect’s account as is available at the time 

the tip is made. Yet there are only a little over 2,000 prosecutions 

every year, according to the DOJ’s own figures. 

Given the data preservation requirements, the lack of data cannot be blamed for the small percentage of prosecutions. It does not 

take a statistician to see that DOJ already has more data than it 

has adequate personnel to investigate. 

Prosecution surely cannot increase under the House-passed budget, which proposes to cut 4,000 FBI agents. What we need is more 

resources, not less; more FBI agents assigned to investigate these 

cases, not less; more personnel to tackle the backlog in forensic investigation of suspect computers, not less; and not more data without resources to process it. 

In addition to the failure to provide additional resources to law 

enforcement, the blanket exemption for all wireless Internet service 

providers and the potential uses of the data in addition to child 

pornography cases also concerns me. 

The wireless Internet is the largest and fastest-growing mechanism for accessing the Internet. In fact, by the end of the year, 

there were over 300 million wireless connections in the United 

States. The exemption for wireless providers would thus appear to 

exempt almost as much as it covers and undermine the goal of the 

legislation. 

The other uses of data, in addition to child pornography prosecutions, is also a concern. Can that data be vulnerable to hackers for 

ID theft or available for marketing, copyright infringement cases, 

divorce cases, or other crimes? These are some concerns that we 

need to look into it. 

And, finally, I join the Chairman in his concern about the administrative subpoena. Under the bill, the Marshals would have more 

power and more expensive subpoena power than the Secret Service 

has even faced with an imminent threat on the life of the President 

of the United States. 

I look forward to hearing the witnesses’ opinion about the most 

curious carveout, the wireless carveout, as well as the other issues 

that I have raised this morning. 

And, Mr. Chairman, thank you, and I yield back. 

Mr. SENSENBRENNER. The Chair recognizes the Chair of the full 

Committee, the gentleman from Texas, Mr. Smith, for an opening 

statement. 

Mr. SMITH. Thank you, Mr. Chairman. 

Child pornography may be the fastest growing crime in America, 

increasing an average of 150 percent per year. The Justice Department estimates that there are now more than 1 million pornographic images of children on the Internet. The department also estimates that one third of the world’s pedophiles involved in organized pornography rings worldwide live in the United States. 

Since the National Center for Missing and Exploited Children, 

called NCMEC, created the cyber-tip line 12 years ago, electronic 

service providers have reported 8 million images and videos of sexually exploited children. The number of reports to NCMEC’s cybertip line of child pornography, child prostitution, child sex tourism, 

and child sexual molestation, and online sexual enticement of chilVerDate Aug 31 2005 17:11 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071211\67309.000 HJUD1 PsN: 67309
16 

dren, increased from about 4,000 in 1998 to 102,000 in 2008, an average increase of 200 percent a year. 

H.R. 1981, the ‘Protecting Children From Internet Pornographers 

Act of 2011,’’ enables law enforcement officials to successfully locate 

and prosecute those who want to hurt our children. Often the only 

way to identify a pedophile who operates a website or exchanges 

child pornography images with other pedophiles is by an Internet 

protocol address. 

Law enforcement officials must obtain a subpoena and then request from the Internet service provider the name and address of 

the user of the IP address. Unfortunately, ISPs regular purge these 

records, making it difficult if not impossible for investigators to apprehend child pornographers on the Internet. 

H.R. 1981 directs Internet service providers to retain Internet 

protocol addresses to assist Federal law enforcement officials with 

child pornography and other Internet investigations. This is a narrow provision that addresses the retention of only the Internet protocol addresses that providers assign to their customers. It does not 

require the retention of any content. So the bill does not read any 

legitimate privacy interests of the Internet users. 

Some Internet service providers currently retain these addresses 

for business purposes, but the period of retention varies widely 

among providers from a few days to a few months, and providers 

will even change their own retention periods from time to time. 

The lack of uniform data retention impedes the investigation of 

Internet crimes. 

H.R. 1981 requires providers to retain these records for 18 

months. This mirrors an existing FCC regulation that requires telephone companies to retain for 18 months all 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. 

In effect, this bill merely applies to the Internet what has applied 

to telephones for decades. 

Without the identity of the perpetrator, law enforcement officials 

cannot track down pedophiles, so they continue to threaten our 

children. The Justice Department describes a disturbing trend in 

child pornography, that pedophiles who document their sexual 

abuse of children will only exchange images with other pedophiles 

who do the same. The result is that people who may have previously only viewed these images now have the incentive to sexually abuse children and produce their own images. 

Data retention enables law enforcement officials to catch the 

abusers and save the children from being abused. 

Critics contend that data retention is unnecessary because current law already requires ISPs to preserve records at the request 

of law enforcement agents for 90 days. But ISPs can only preserve 

information they still have. By the time investigators discover the 

Internet child pornography and make the request under this provision, the provider has often already purged the Internet protocol 

address records. 

Both Democratic and Republican administrations have been calling for data retention for a decade. In January, the Justice Department testified that shorter even nonexistent retention by providers 

frustrate criminal investigations. Every time a provider purges IP 

17 

address records, it erases forever the evidence needed to save a 

child. 

In hearings before the Committee this spring, both Attorney 

General Holder and FBI Director Mueller testified that data retention is invaluable to investigating child pornography and other 

Internet-based crimes. H.R. 1981 also creates a new Federal offense allowing for Federal prosecution of any person who conducts 

a financial transaction knowing that it will facilitate access to child 

pornography. 

This bill strengthens protection for child witnesses and victims, 

who are often subjected to harassment and intimidation throughout 

the trial period. The bill allows a Federal court to issue a protective 

order if it determines that a child victim or witness is being harassed or intimidated, and imposes criminal penalties for violation 

of a protective order. And the bill increases the penalties for child 

pornography offenders in cases that involve children less than 12 

years old. 

Parents who once relied on the four walls of their homes to keep 

the children safe are now faced with a new challenge. The Internet 

has unlocked the doors and opened the windows. The Internet has 

proved to be of great value in many aspects of our lives, but it has 

also become a virtual playground for sex predators and pedophiles 

to distribute child pornography images and encourage others to engage in child pornography. 

Mr. Chairman, I would like to thank my colleague Debbie 

Wasserman Schultz for cosponsoring this much-needed legislation. 

I look forward to hearing from the witnesses today and yield back 

my nonexistent time. 

Mr. SENSENBRENNER. The Chair appreciates that. 

The Chair recognizes the Ranking Member of the full Committee, 

Chairman Emeritus John Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

I come here to help bring our conservative Members together 

here. On one level, I am working with the Speaker and the majority leader. There are great differences there that need reconciliation. 

And here on the Judiciary Committee, I am working with the 

Chairman of the full Committee and the distinguished Subcommittee Chairman, who is also an emeritus Chairman. I suppose 

if I am junior grade that makes him senior grade, since he was 

there first. 

Now we are here today examining 1981, which is to protect children from Internet pornographers, a laudable goal worthy of 

praise, a noble objective. But the problem here is, first of all, that 

1981, if enacted in its present form, would not achieve that goal. 

And number two, it does other damage that doesn’t even exist. 

It would create a whole new host of problems, and it is not accidental that there are negative views about this bill or this proposal 

that are shared by a wide group of leaders and other organizations. 

I name three or four. The American Civil Liberties Union is opposed to this measure. The Center for Democracy and Technology 

and the Electronic Privacy Information Center, there are also 

Internet providers and other organizations that advocate for children, all opposed. 

18 

And the fundamental problem is that it fails to achieve its intended purpose to protect children from Internet pornographers, 

and here is why. First, we need to—and this bill can be made, I 

think put in a form that people on both sides of the aisle might be 

able to support it. 

Here’s the first thing we have to do: Eliminate the exemption of 

data retention mandate for wireless providers. We need to eliminate the exemption from the data retention mandate for wireless 

providers. They have got to be included. And why not? If it is that 

important, why wouldn’t we include them? 

The bill completely, in its present form, exempts every wireless 

Internet service that exists from the data retention requirement. If 

it is good enough for the others, it might be very important for the 

wireless Internet providers, the same thing. 

And as a result, by doing what it does now, the bill would exempt 55 million residential mobile wireless service subscribers. 

That should be unacceptable to everybody that is supporting the 

bill. And it doesn’t take a scientist to know that criminals will exploit this loophole in 1981 and simply migrate to a wireless service. 

So that makes the bill useless. 

And I wish that was the only thing we needed to correct. But if 

we corrected that, it would begin to put it on the path to general 

acceptability. 

Mr. SMITH. Will the gentleman yield? 

Mr. CONYERS. Of course. 

Mr. SMITH. To reassure the gentleman, we are working to do just 

as you suggested and figure out a way so that we do not exempt 

the wireless providers, in which case, I look forward to your support. 

Mr. CONYERS. Thank you very much, Chairman Smith. 

Now there is another consideration that I would put forward to 

the authors of the bill, both my friends, and whom I respect here 

on the Committee. And that is limit law enforcement’s access to 

Internet pornography crimes against children, limit law enforcement’s access to Internet pornography crimes against children. 

The Department of Justice says that this bill would institute a 

data retention policy for all types of crimes, including routine street 

crimes. And I have expressed this in an earlier meeting in January, 

and I think that we may want to revisit this second very important 

consideration I think that would be needed to get this bill together. 

The bill’s title, the Protecting Children From Internet Pornographers Act, is a misnomer, because the legislation really is not 

about those types of crime at all, because if it were, it would certainly not contain a broad exemption for the largest Internet service providers, such as AT&T, and it would target child exploitation. 

I will submit the rest of my statement. Thank you. 

[The prepared statement of Mr. Conyers follows:] 

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Mr. SENSENBRENNER. I thank very much the gentleman from 

Michigan. 

It is now my pleasure to introduce two of today’s three witnesses. 

Ernie Allen is cofounder of the National Center for Missing and 

Exploited Children and has served as president and CEO for 22 


JC-5.eps
24 

years. He is also the founder of the International Center for Missing and Exploited Children and serves as the CEO. Under his tenure at NCMEC, more than 150,000 missing children have been recovered. He received both his bachelor and jurist doctorate degrees 

from Louisville University. 

Mark Rotenberg is executive director of the Electronic Privacy 

Information Center, or EPIC, in Washington. He teaches information privacy law at Georgetown University Law Center. He served 

as counsel to Senator Patrick J. Leahy on the Senate Judiciary 

Committee after graduation from law school. He is a graduate of 

Harvard College and Stamford Law School. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety, and I ask that each witness summarize 

his or her testimony in 5 minutes or less. 

To help you stay within that time limit, there is a timing light 

on your table. When the light switches from green to yellow, you 

will have 1 minute to include your testimony. And when it turns 

red, your time is up. 

And now I will yield to the gentleman from Virginia, Mr. Goodlatte, to introduce his constituent, Sheriff Michael Brown. 

Mr. GOODLATTE. Thank you, Mr. Chairman, I appreciate this 

honor. 

Sheriff Brown has been a dear friend of mine for 20 years and 

for the past 15 years as sheriff of Bedford County. I know of no 

sheriff or other local law enforcement official anywhere in America 

who has done more to combat online child pornography. And he 

has led that through groups such as the Safe Surfing Foundation 

that educates parents and children about how to keep their children safe on the Internet and through Operation Blue Ridge Thunder, which has led to the prosecution of online child pornographers, 

not only in southwest and central Virginia but all across the country, in fact, even overseas. His team has uncovered activities that 

have led to prosecutions in many, many jurisdictions around the 

country. 

He is a retired special agent of the U.S. Treasury Departments 

Criminal Enforcement Division. And prior to his election as sheriff 

in 1996, he served as criminal justice consultant and instructor 

with the Justice Department’s International Criminal Investigative 

Training Assistance Program in Central and South America and 

the Caribbean. 

Sheriff Brown is a member of the executive committee, board of 

directors of the National Sheriffs’ Association, where he currently 

serves as the Chair of the Technology Committee and is a member 

of the Congressional Affairs Committee. 

This is not the first time Sheriff Brown has made presentations 

before the Congress, and I welcome him back. 

Mr. SENSENBRENNER. I thank you. 

Mr. Allen, you are first up and you will be recognized for 5 minutes. 

TESTIMONY OF ERNIE ALLEN, PRESIDENT AND CEO, 

NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN 

Mr. ALLEN. Thank you, Mr. Chairman. 

25 

As you mentioned, I have submitted written testimony. I would 

like to briefly summarize. 

Mr. SENSENBRENNER. Without objection, all the witnesses’ written testimony will be inserted into the record at the point of their 

testimony. 

And the clock will be reset for your 5 minutes. 

Mr. ALLEN. Thank you, Mr. Chairman. 

I would like to focus on three provisions of the bill, first section 

2 on financial facilitation. Our primary concern is that there be 

nothing in the legislation that impedes the ability of financial companies to work with law enforcement and our center in attacking 

commercial child pornography. 

The basis for that is, in 2006 we created a financial coalition 

made up of 35 companies, representing 90 percent of the U.S. payments industry. The first priority is always criminal prosecution. 

However, we know it is impossible to arrest and prosecute everybody. So what has been happening is our center identifies illegal 

child pornography sites with method of payment information on it. 

These companies donate to us live accounts, which we provide to 

law enforcement around the country, which attempts to make purchases on those accounts. When the transaction goes through, we 

are able to capture that information, we report it to law enforcement and to the payment company. This is an illegal use of the 

payment system, so they are able to stop payments and shut down 

accounts. 

In 2006, McKinsey Worldwide estimated that the commercial 

child pornography industry was a multibillion-dollar industry. Just 

last year the Treasury Department’s Office of Terrorist Financing 

and Financial Crimes indicated that the problem is now effectively 

zero, that it is less than a $1 million a year. And they attribute 

that to enforcement and to the ability of private sector companies 

to stop the use of the payment system to support their enterprises. 

So we want to make sure that nothing in the bill keeps these 

companies from their voluntary action that they are now engaged 

in that has had such dramatic impact on the commercial child pornography problem. 

Second point I want to raise is section 4, the Retention of Certain 

Records. What we like about this proposal, much as Chairman 

Smith has indicated, is that there has been long discussion and debate over data retention. We think this is a reasonable, balanced 

approach that does not mandate retaining content. What it mandates is retaining conductivity information. 

There can’t be prosecution until law enforcement connects the 

date and time of the online activity to an actual person, the type 

of information that is found in electronic service providers’ 

connectivity log. We have to be able to establish the linkage between that IP address and an actual person. 

As Chairman Smith indicated, we think this is analogous to the 

records that telephone companies are required by Federal law to 

keep, the date and time that a phone number was dialed. There is 

currently no requirement to do that. And while many companies 

have policies on data retention, the policies vary widely, are not 

implemented consistently, and may be for too short a time to have 

meaningful prosecutorial value. 

26 

The third area I want to comment on is section 11, Administrative Subpoenas. And with great respect to the Chairman and the 

Ranking Member, we believe that it is essential that the Marshals 

Service receive administrative subpoena power. 

Now the basis for that is identifying and tracking noncompliant 

fugitive sex offenders is a huge challenge assigned to the Marshals 

Service by the Adam Walsh Act. In 95 percent of the Marshals’ 

cases, the fugitives’ use of a communication device, such as the 

Internet or the telephone, is the key piece of evidence in locating 

the fugitive. 

Currently what the Marshals must do is contact the United 

States Attorney and obtain an All Writs order, which typically 

takes about 2 months. In addition, there has already been judicial 

review, because the is a warrant issued for the fugitives’ arrest. 

Time is vital in searching for a fugitive who, by their very nature, 

are highly mobile. 

Let me mention that since 1948, and with the new law in 1970, 

administrative subpoena power has been provided to Justice Department law enforcement. However, that has only applied historically to the FBI and not the Marshals Service. 

And also, a final point is under the statute, the administrative 

subpoena power provided to the Marshals Service specifies electronic service provider records and only in child sexual exploitation 

cases. So I think the intent of Chairman Smith and Congresswoman Wasserman Schultz is to create a surgical, narrow exception that we believe the intent has always been to include Justice 

Department law enforcement in the administrative subpoena 

power. 

In conclusion, I think that the statute is a great beginning, is an 

attempt to provide a balanced, reasonable approach to addressing 

a serious problem. 

[The prepared statement of Mr. Allen follows:] 

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Mr. SENSENBRENNER. Thank you. 

Sheriff Brown? 

TESTIMONY OF MICHAEL J. BROWN, SHERIFF, 

BEDFORD COUNTY SHERIFF’S OFFICE 

Mr. BROWN. Good morning. 

Mr. SENSENBRENNER. Could you turn your mike on? 


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Thank you. 

Mr. BROWN. As my Congressman, Congressman Goodlatte, so 

graciously noted, my name is Michael Brown. I am a retired Federal agent, and I have had the honor of serving as the sheriff of 

Bedford County, which is the home of the National D-Day Memorial, for the past 16 years. 

I also serve on the executive committee and the board of directors for the National Sheriffs’ Association. The National Sheriffs’ 

Association represents the 3,083 elected sheriffs across the country 

and more than 20,000 law enforcement professionals. 

I am pleased to have this opportunity to appear before you today 

to discuss H.R. 1981, the ‘‘Protecting Children From Internet Pornographers Act of 2011.’’ 

Additionally, the Bedford County Sheriff’s Office has been Internet Crimes Against Children Task Force since 1998. We are known 

as the Southern Virginia Internet Crimes Against Children Task 

Force. 

The expansion and the development of technology has enabled 

child pornography to become a worldwide epidemic. Child predators 

have become adept at exploiting their perversion and hiding behind 

the anonymity of the Internet, making it extremely difficult at 

times for law enforcement to identify these predators. 

As such, unmasking child pornographers on the Internet is a 

painstaking and complex process for law enforcement officers and 

typically requires assistance from Internet service providers to accurately identify the perpetrator. I am speaking specifically to section 4 on the Internet service providers. 

Having some ISPs only retain their client records for a short period of time—it could be hours, it could be days, it could be weeks, 

it could possibly be months, so it could be months. And it varies 

from ISP to ISP. 

As such, the limited data retention time and lack of uniformity 

among these companies can significantly hinder law enforcement’s 

ability to identify predators when they come across child pornography. 

To help law enforcement combat Internet child pornography, 

Congressman Lamar Smith of Texas and Congresswomen Debbie 

Wasserman Schultz of Florida introduced H.R. 1981. Through 

1981, ISPs will be required to retain the IP addresses assigned to 

customers for 18 months. The 18-month provision is critical, as it 

will ensure that when law enforcement contacts an ISP looking for 

a child predator, the identifying information will still exist. 

If I could give you just a brief example of why we need this time 

limit: A cyber-tip from the National Center for Missing and Exploited Children came into the Southern Virginia Internet Crimes 

Against Children Task Force in February of this year. The case involved someone posting that they were exposing themselves to 

their 2-and-a-half-year-old child. The only piece event evidence was 

the IP address that was posted to a Yahoo chat room through an 

Internet service provider. 

While going through the legal process to retrieve the information, 

we discovered that the ISP only kept the IP history for a period of 

30 days. Sadly, the 30-day limit had passed since the evidence was 

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posted. The case had to be closed due to the lack of further investigative material. 

This case, and hundreds like it from the files of the Internet 

Crimes Against Children Task Forces across the country clearly 

demonstrate the need to ensure that ISPs retain customer information for law enforcement. 

Therefore, it is imperative that this data be retained by ISPs for 

a significant and standard period of time, so that when law enforcement goes to lawfully request the online information and 

records, the information still exists. 

Additionally, H.R. 1981 provides legal protection for ISPs to further facilitate cooperation with law enforcement and help ease concerns that the ISPs could be held civilly liable for sharing customer 

information with law enforcement doing a valid investigation. 

H.R. 1981 also creates a new Federal offense for individuals who 

profit from child pornography, greatly enhances penalties for possession of child pornography, provides administrative subpoena authority to the U.S. Marshals to access critical travel information 

records on fugitive sexual offenders, and strengthens the protections for child witnesses and victims. 

Those who prey upon children are among the most violent and 

vilest offenders in society, and this act, 1981, will ensure that the 

predators are appropriately and strongly punished as shares. 

As sheriffs, it is our responsibility to protect society’s most vulnerable, our Nation’s children, from the evils of the world. Child 

pornography is one such evil. 

I have been in this business or 44 years. I have worked in Central America, South America, the Caribbean, and in Europe. I 

thought I had seen every man’s inhumanity to man that I could 

imagine. But I really had not seen anything until I became involved in this arena of child pornography. 

The provisions within H.R. 1981 provide law enforcement officers 

the capabilities necessary to combat child predators and child pornography. The National Sheriffs’ Association strongly supports—— 

[The prepared statement of Mr. Brown follows:] 

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Mr. SENSENBRENNER. The time of the gentleman has expired. 

Mr. Rotenberg? 


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TESTIMONY OF MARC ROTENBERG, PRESIDENT, 

ELECTRONIC PRIVACY INFORMATION CENTER 

Mr. ROTENBERG. Chairman Sensenbrenner, Mr. Scott, Members 

of the Committee, thank you for the opportunity to testify today. 

My name is Marc Rotenberg, and you have asked me to look at 

H.R. 1981, Mr. Smith’s bill. 

I want to begin at the outset by saying that the purpose of privacy laws is of course to protect the privacy of the customer information that a company acquires through provision of a service. And 

ECPA, although a complicated statute, at its heart has this purpose. 

The circumstances under which personal information may be disclosed are set out in a variety of provisions, and there are many 

safeguards that are built in, including, for example, typically a judicial determination, some type of public reporting, and even notice 

to the target of an investigation. 

Now there are situations that ECPA currently allows for law enforcement to preserve information for up to 90 days and even to 

seek renewal in those circumstances perhaps where a warrant cannot be obtained right away. That’s an exigency. Or for the service 

provider on a voluntary basis to turn over to the government information when they have a good faith reason to believe that there 

is actually some threat posing a risk of life or serious physical 

harm to an identifiable individual. 

So there is already in the statute a number of provisions that can 

be used to address the concerns that have been addressed. 

Now I am going to speak to the data retention provision, but I 

also want to draw your attention to two related provisions that 

have not yet received much attention in the discussion of the bill. 

As several of the Members have indicated at the outset of the 

hearing, there are serious concerns about data retention. We, of 

course, live in a time where there is a great deal breach and security breach taking place. Companies are not able, oftentimes, to 

protect the information that they require themselves for providing 

services. 

This statute would have the effect of mandating the retention of 

information that businesses might not otherwise keep. And the 

problem is not only that section 4 establishes that requirement for 

the assigned IP address, but sections 5 and section 6 create a new 

type of immunity that has never existed before in the Wiretap Act. 

In other words, at the same time that the ISPs would be told: 

Keep this information. It may be useful for law enforcement. It 

may also pose some risk to your customers, but be assured that 

whatever happens to this information, if it is improperly accessed 

or improperly used, you are off the hook, because what section 5 

does is provide a complete immunity for the record retention that 

is mandated by section 4. 

And as we read section 5, by the way, it doesn’t even seem to 

have the qualifying language that otherwise exists for the type of 

immunity when ISPs properly cooperate with the law enforcement 

investigations. So section 5 needs to be looked at much more closely. 

In similar fashion, we believe that section 6, which creates a 

good-faith defense for those who are able to overcome the hurdle 

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in section 5, is also quite broad and would apply, in the plain language of the statute, not only to violations that could be charged 

under ECPA, but also under any other law as well. 

And there are of course today many state laws that require companies to notify their customers when a security breach has occurred, because now the customers are at risk. And, therefore, with 

this second type of good faith defense that is introduced in section 

6, it appears that ISPs will not be responsible, will not be obligated 

to notify their customers of these harms. 

So in our statement, and we describe this in more detail, the 

problem here is not just the data retention obligation. It is being 

coupled with an immunity provision that means that information 

that is kept will not be subject to the same type of responsibility 

and obligation. 

There are two other key points that I would like to make. 

The first is that there is clearly a movement toward data minimization in the security field. Now, this is not a new development. 

In fact, you can go back 25 years to the Video Privacy Protection 

Act and find a statutory obligation for businesses to destroy information on a customer once it is no longer needed. It is a sensible 

approach that prevents misuse. 

Data retention pulls in the opposite direction from data minimization, which is already in statute, and we think the better approach for privacy. 

Finally, I spent quite a bit of time in the prepared statement discussing the experience of the European countries, which have over 

the last 5 years tried to implement a sweeping data retention obligation. Now I say ‘‘tried to implement’’ because there has been an 

enormous controversy. The users have objected. The ISPs have objected. The telephone companies have objected. 

And when this European directive has been brought into court 

in the constitutional courts of the European countries, invariably 

those courts have found these obligations to be unconstitutional. 

And I hope you will also take that into account as you consider 

the proposal. 

Thank you again for the opportunity to testify. 

[The prepared statement of Mr. Rotenberg follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

The Chair will defer his questioning and will begin by recognizing the gentleman from Texas, Mr. Smith. 

Mr. SMITH. Okay. Thank you, Mr. Chairman. 

Sheriff Brown, let me direct my first question to you, and it is 

this: Can you give us examples of cases that have not been able 

to be solved because ISPs have not retained the data necessary and 

that would have been used by law enforcement officials? 

Mr. BROWN. Yes, sir, Congressman. 

Mr. SENSENBRENNER. Sheriff, could you—— 

Mr. BROWN. Pardon me? 

Mr. SENSENBRENNER. Please turn your mike on. 

Mr. BROWN. You would be surprised that I am a head of an ICAC 

task force. 

The example I used in my statement just a minute ago, this was 

in February of this year, and we had an incident of a posting on 

a Yahoo account of an individual exposing himself or herself—we 

don’t know—to their 2-and-a-half-year-old child. And because of the 

inability—the ISP only kept the data for 30 days. And by the time 

we got the information, were able to start tracking, the 30 days 

had expired, and we no longer had an ability to bring this additional information, investigative evidence, into play. 

We have had this happen on a number of occasions. I can’t tell 

you exactly how many. I believe, and I think I speak for all of the 

ICAC task forces, if you bring a task force in, they are going to tell 

you and they are going to give you specific examples of the data 

not being retained, and as a result, the case had to be just closed. 

Mr. SMITH. Okay. Thank you, Sheriff Brown. 

Mr. Allen, let me ask a couple questions to you. The first is, is 

child exploitation some remote type of crime that does not occur 

very often? Or does it occur more often than a lot of us might expect? 

Mr. ALLEN. Mr. Chairman, it is exploding with the advent of the 

Internet. 

Just to give you one illustration, 2003 we began what was called 

a Child Victim Identification Program in which law enforcement 

and prosecutors would send us images. And what we would attempt to do is to identify the child victims, so the child could be 

rescued, located, identified, and identify the perpetrator. 

Our staff reviewed 13 million child pornography images and videos last year. We are currently reviewing roughly 300,000 a week, 

so this is an exploding problem. 

The second aspect of this I think is widely misunderstood, is we 

hear all the time, well, child pornography, isn’t this really just 

adult pornography? Aren’t these 20-year-olds in pigtails made to 

look like they are 15? Of these now 53 million images that we have 

reviewed, of the children identified, 77 percent had been prepubescent; 10 percent of the 77 percent have been infants and toddlers. 

So just 23 percent, and that is not incidence study. I don’t suggest that it is empirical. It is based on what is sent to us. But overwhelmingly, this is a problem involving very young kids who don’t 

tell. When the image of their sexual abuse is captured on film or 

video, reporting drops to virtually zero. 

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Mr. SMITH. Mr. Allen, a related question, is there a link between 

the possession of child pornography and the actual victimization of 

children? And if so, how substantial is that link? 

Mr. ALLEN. We believe there is. Now there is debate about, in 

many cases people are talking about mere possession, but what we 

see is that there is an escalating effect, that today’s images are not 

going to be satisfactory to this person tomorrow. 

Mr. SMITH. What percentage of people who possess child pornography actually victimize the child? Isn’t it close to 40 percent? 

Mr. ALLEN. Well, we think it is higher than that. There is some 

research at the Federal Bureau of Prisons that suggested it was 

higher than that. 

We think that, ultimately, the images alone are not going to be 

enough for a percentage of these guys. Whether it is 20 or 40 or 

80, we don’t know, but it is substantial. 

Mr. SMITH. Thank you, Mr. Allen. 

Mr. Rotenberg, I take your comments about section 4 and 5 as 

legitimate and sincere constructive criticism, and we will take a 

look in more depth at your comments. 

But also let me say to you that if a provision is unclear, or if it 

is a 50-50 kind of proposition, we are going to give the benefit of 

the doubt to saving children, and that is the point of this bill. But 

still, we will take a look at your suggestions. 

Thank you, Mr. Chairman. I yield back. 

Mr. SENSENBRENNER. The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you. 

And I would like to follow up on along the questions. 

Mr. Allen, the Supreme Court has made a big deal out of whether or not these are real children or cartoons. It is no question that 

these are in fact real children; is that right? 

Mr. ALLEN. Yes, sir. And in fact, that is why we created our 

Child Victim Identification Unit. It is because of the Supreme 

Court decision in 2002. 

Mr. SCOTT. And when you provide law enforcement with all these 

leads, is it not true that they don’t have anywhere close to the resources needed to follow through on all of the leads you give them? 

Mr. ALLEN. Absolutely. I mean, the scale of the problem vastly 

exceeds the capacity of law enforcement to deal with it. 

Mr. SCOTT. Mr. Rotenberg, what would be the cost to the ISPs 

to retain this data? 

Mr. ROTENBERG. I don’t know, Mr. Scott, exactly what their costs 

would be, but I suspect it would be significant, because it is not 

current practice. In fact, the ISPs I think have avoided trying to 

do this because of some of the concerns that have been raised but 

with respect to costs. 

Mr. SCOTT. Well, the comparison has been made to telephone 

tolls, but it is a fact that the telephone companies already keep the 

toll data; is that right? That most of the calls are not toll calls. 

They just keep the toll records, not the local call records; is that 

right? 

Mr. ROTENBERG. That is correct. 

Mr. SCOTT. Now, one of the problems that you have articulated 

is if you keep all this data, it is sitting there for hackers to get access to. And you pointed to the immunity provision. 

62 

What is the liability now if you have data sitting around that 

somebody accesses and causes harm? 

Mr. ROTENBERG. Well, there are a variety of the fines. Certainly 

under ECPA, they are both civil fines, there can be criminal penalties. And they are also important security breach notifications. 

And I wanted to draw your attention to this point, because if you 

are looking at the papers nowadays it is clear that breach notices 

are very important. If the immunity provision is left in place, people won’t even know if their personal data is improperly accessed 

or disclosed. 

Mr. SCOTT. A suggestion that this information will be used for 

child pornography cases and the sneak and peek, when we were 

told that we needed sneak and peek warrant authority to protect 

us from terrorism, we look up and out of over 700 sneak and peek 

warrants, three were for terrorism. All the rest were something 

else. 

If you have this data, would it be available for divorce cases? 

Mr. ROTENBERG. I think it could be available for a wide range 

of cases. In fact, I looked at the January hearing record, and Mr. 

Weinstein from the Department of Justice said at that point he 

thought it would be obvious that the data would be used in other 

investigations. 

Mr. SCOTT. Marketing? 

Mr. ROTENBERG. Certainly. 

Mr. SCOTT. Contract disputes? 

Mr. ROTENBERG. Yes. 

Mr. SCOTT. Copyright infringement, that kind of stuff? 

Mr. ROTENBERG. Civil subpoena. Yes. 

Mr. SCOTT. Sheriff, you indicated that you were following 

through on a case, and if you had the information, it would have 

been helpful. 

If the information had been available, what probable cause information would you have already at your disposal to even seek to go 

through the retained data? 

Mr. BROWN. Well, the IP address, all of the associated information with that, who it was registered to, when it was registered. If, 

in fact—— 

Mr. SCOTT. You have that already. 

Mr. BROWN. Pardon? 

Mr. SCOTT. You would have that already. What would you have 

already? 

Mr. BROWN. We didn’t have anything, and we would not 

have—— 

Mr. SCOTT. Well, if you don’t have anything, how do you access— 

do you need any kind of probable cause to start searching through 

the data? 

Mr. BROWN. The tip that we got is called a cyber-tip, and we receive them from the National Center for Missing and Exploited 

Children. 

Mr. SCOTT. And what information does that provide you? 

Mr. BROWN. That a posting of some type involving child pornography has been entered into and is on the Internet in some location. And then we at that point go to the Internet service provider 

to track that information. 

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Mr. SCOTT. What information—Mr. Rotenberg, what information 

is retained? 

Mr. ROTENBERG. Well, a typical log would include the IP address, 

the date and time of access to the website, most likely a filename, 

maybe a security flag. And it is of course the linkage between the 

IP address which would be in the log with the actual account 

owner that I think people are interested in. 

Mr. SCOTT. Does it give you any content? 

Mr. ROTENBERG. It would give you access to content, because the 

log would typically include the name of the file that has been 

transferred. 

Mr. SCOTT. If you had that information, would you know what 

information had actually been transferred? Or would it just note 

what site you were looking at? 

Mr. ROTENBERG. Well, typically in a web log, I think you would 

know what information was transferred, because you would be able 

to see the record locator on the file and, therefore, have access to 

the content. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from South Carolina, Mr. Gowdy? 

Mr. GOWDY. Thank you, Chairman. 

Mr. Rotenberg, ISPs currently maintain all sorts of data—name, 

address, Social Security number, credit card information. Do you 

really think getting an IP address is going to open up all sorts of 

mayhem that doesn’t already exist? 

Mr. ROTENBERG. Well, Mr. Gowdy, I won’t dispute there is currently a lot of risk, but when you have a situation with a lot of 

risk, I don’t think you want to add to the risk. And it is the reason 

that the ISPs are moving away from this extensive data collection. 

The attacks have become much more severe in last few months. 

Mr. GOWDY. I am not disputing that. What I am asking you is, 

are you willing after this hearing to sit down with the sheriff or 

any other sheriff and help them investigate crimes that are incredibly hard to investigate and incredibly hard to prosecute? Are you 

willing to strike some balance between privacy and his desire to 

protect children? 

Mr. ROTENBERG. There is no dispute that these crimes are very 

serious, and they should be—— 

Mr. GOWDY. I didn’t say serious. I said hard to investigate and 

hard to prosecute. 

Mr. ROTENBERG. Yes. But it is not clear that this proposal would 

actually make it easier to investigate those crimes. You see, this 

is my concern. You are going to create a new data retention obligation that will create a risk to your 99.99 percent of innocent users 

of the Internet. And for the bad people who you are really tried to 

go after, it is not clear that this bill solves the problem. 

You have an enormous carveout—— 

Mr. GOWDY. Do you have another way to investigate Internet 

crime other than capturing the IP address? 

Mr. ROTENBERG. Well, I think when you prosecute and when you 

convict, I think you maybe need to send a more powerful message 

than is currently being—— 

Mr. GOWDY. How are we going to get a conviction? How are we 

going to get an indictment? How are we going to get an arrest warVerDate Aug 31 2005 17:11 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\071211\67309.000 HJUD1 PsN: 67309
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rant from a magistrate judge if we don’t have the IP address and 

we can’t link it to a perpetrator? 

Mr. ROTENBERG. Well, I am not an expert in this field, but I do 

know that the forensic techniques have become considerably better 

over the last few years. 

Mr. GOWDY. Forensic techniques assume that you have the computer. How are you going to get the computer if you can’t link it 

to an IP address? 

Mr. ROTENBERG. There is a lot of information associated with 

Internet communications, header information and detailed information contained in the content of the message that makes it easier 

today for people to get access to the type of information you are describing than just a few years ago. 

And I actually think with the introduction of some of the new 

Internet protocols, some of the concerns you have will be addressed 

as well. 

But it will not be perfect. I mean, I concede this. There will be 

cases that you may not be able to solve. 

Mr. GOWDY. Mr. Allen, there are already cases we are not able 

to solve. There are millions of images? 

Mr. ALLEN. Yes, sir. 

Mr. GOWDY. You have identified about 3,500 children. 

Mr. ALLEN. Yes. 

Mr. GOWDY. I have been out of the prosecutorial business for a 

long time now. Is it still a defense that it is not a real child, that 

it is a computer—I am not talking about a cartoon that Mr. Scott 

made a reference to. I am talking about a commuter-generated 

image of a prepubescent youth that the defense says, it is not a 

real child. 

Mr. ALLEN. Mr. Gowdy, absolutely. As a result of the 2002 Supreme Court decision, there are a lot of defense counsel in this 

country who, you know, you seize 10,000 images, who will argue 

these aren’t real kids. And there are a number of judges who are 

saying to the prosecutors, prove that they are. 

That was the genesis of the creation of our Child Victim Identification Program, so that if they send us 5,000 images and we are 

able to identify five of the kids who have been previously identified—because these images recirculate; they stay out there—that is 

enough to sustain a conviction. 

But there is no question that that is an argument that continues 

to be made, and it is important to sustain the convictions. It is 

more important to identify who the kids are, because in many of 

these, this is ongoing abuse. 

Mr. GOWDY. But it is one more layer that law enforcement and 

prosecutors have to overcome to get a conviction in this area of 

crime that everyone concedes is as evil and inhumane as any, the 

fact that we have to prove that it is a real child and not computergenerated. 

Are other countries cooperative? I know a lot of these children 

come from other countries. I know you are doing the best job you 

can identifying kids. Are other countries helping? 

Mr. ALLEN. Absolutely. We are making great progress. There is 

a virtual global task force now that links law enforcement efforts 

in Canada, United Kingdom, Australia, Italy, seven or eight other 

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countries. Interpol is playing a key role in terms of collecting these 

images of identified kids. 

So there is enormous progress being made. More Federal prosecutions for child pornography last year in this country than at any 

time in history. 

But as Mr. Scott points out, we are still barely scratching the 

surface. 

Mr. GOWDY. All right, good. 

Sheriff Brown, thank you for your long and distinguished service 

in law enforcement. 

Mr. BROWN. Thank you. Did you get all five pages? 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

I think I sense that there is a feeling that we may be able to, 

through some kind of consideration after this hearing, began to 

move toward a more acceptable piece of legislation. 

You know, I suppose there is an explosion, but the similar identification of horrible instances doesn’t make me really feel that that 

proves there is an explosion. I take your word for it. 

Now Chairman Lamar Smith has agreed with me that this exemption of all wireless Internet service providers from the data retention requirement needs to be re-examined. Would that be a good 

first step, attorney Rotenberg, for us to begin? 

Mr. ROTENBERG. I think to address Mr. Gowdy’s concerns, to 

have an effective response from a law enforcement side, you would 

have to apply to wireless providers. Otherwise, it becomes obvious 

how to escape detection. 

Mr. CONYERS. Yes. 

Sheriff Brown, do you concur that this is a part of the bill that 

we might want to look at again? 

Mr. BROWN. Yes, sir. Absolutely. 

Mr. CONYERS. How do you feel about this, Mr. Allen? 

Mr. ALLEN. I agree, Chairman Conyers, that it is complex. There 

are a series of complexities to the issues—— 

Mr. CONYERS. Of course. 

Mr. ALLEN. But I think it is a very important step to take. 

Mr. CONYERS. Thank you. 

Thank you, all. 

Here is a little more sticky consideration, is that this bill might 

institute accidentally a data retention policy for all crime. 

Is that over the top, Mr. Rotenberg? Is that just an exaggeration 

that we needn’t concern ourselves with? 

Mr. ROTENBERG. I think, Mr. Conyers, that is clear from the 

plain text of the bill. The bill simply says, let’s establish the ability 

to identify in the ISP record every single user of that service. And 

there is no effort at the outset to distinguish those who may be engaged in criminal conduct from those who are not. So that is the 

starting point. 

Mr. CONYERS. Sheriff Brown, I sense that you might be troubled 

by the whole idea that we might inadvertently or deliberately set 

about setting up a system that would have retention of all crime. 

That isn’t what you came here today to testify for, is it? 

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Mr. BROWN. My primary concern today was with the retention. 

That is why I am here for the National Sheriffs’ Association. 

It is pretty simple to an old country sheriff that we need more 

time to investigate these instances that we are coming up against. 

Mr. CONYERS. Sure. But Mr. Allen has already pointed out that 

we are so underresourced. That is your main problem. If we 

weren’t in this room today on this subject, the big problem is we 

are not giving you the resources that you need. Isn’t that it? 

Mr. BROWN. Law enforcement always wants more. We need more 

people on the street. We need more funding. In this particular 

arena, we are completely snowed under. 

And again, just more clear, defined information from these ISPs 

would be greatly appreciated. 

Mr. CONYERS. But you are not about all crime. You are trying to 

get at child pornography. You are not trying to get at every crime 

that might be committed in the books. You are not for that, are 

you? 

Mr. BROWN. I am sorry? 

Mr. CONYERS. You are not for getting retention policy for every 

crime on the books, are you? No, you’re not. 

Mr. BROWN. No, I am here for the Internet Crimes Against Children Task Force. 

Mr. CONYERS. Are you, Mr. Allen? Mr. Allen, you can answer. 

Mr. ALLEN. No. Let me say, Mr. Conyers, I know that Director 

Mueller and Attorney General Holder feel that this is important 

not just for child pornography crimes. 

I am here today to talk about access to this kind of—— 

Mr. CONYERS. Oh, you mean that they are for it? Are you implying that? 

Mr. ALLEN. I think what they have said in the past is that data 

retention—— 

Mr. CONYERS. On all crimes? 

Mr. ALLEN. I think that is right. 

Mr. CONYERS. Oh, boy. 

Mr. SENSENBRENNER. With that, the gentleman’s time has expired. 

The gentleman from—— 

Mr. CONYERS. Thank you very much. 

Mr. SENSENBRENNER. Mr. Poe? 

Mr. POE. Thank you, Mr. Chairman. 

Thank you for being here, Mr. Allen. It is always good to see you. 

Thanks again for the hard work you do. You are the angel for 

America’s children. And I mean that, you and your organization. 

Sheriff, I appreciate you being here. Being a former judge, I always liked working with sheriffs. However, I don’t really forgive 

the Sheriffs’ Association for hiring Stephanie Garlock away from 

me. So anyway—— 

Mr. BROWN. And I can understand that, sir. 

Mr. POE. Mr. Rotenberg, I would like to start with you. Being a 

former judge and a prosecutor, I still think judicial review, when 

appropriate, is much better than prosecutorial review, whether it 

is a Marshals Service or the U.S. Attorneys’ Office. 

Do you see any problems in the proposed legislation about warrants? 

67 

Mr. ROTENBERG. Well, there is a provision, sir, to give the Marshals Service new administrative subpoena authority. I didn’t look 

closely at that provision, but I think it may be something that 

should get a little bit more scrutiny. 

I agree with you that judicial review is always preferable, and 

when you are in the subpoena realm, you just don’t quite know 

what the basis might be for the investigation. 

Mr. POE. All right. 

Mr. Allen, based on all the information that you have received 

and what you know about this issue, the sites that we are talking 

about here, how many of them are American sites? How many of 

them are from overseas? Can you give us a percentagewise? 

Mr. ALLEN. It is hard to say, because so many of the overseas 

sites flow through U.S.-based servers. 

Mr. POE. Okay. 

Mr. ALLEN. But what we see in terms of the victims is that this 

is a global problem, but that a stunning number of the victims, as 

much as half of the victims, are American kids, and that overwhelmingly, the people who are creating this content are people 

who are close to them and have easy and legitimate access to them. 

Mr. POE. Fifty percent. 

How does all of this issue relate to human trafficking? Can you 

describe how human trafficking fits into this issue? Are we dealing 

with the same type of people? Or are we dealing with two different 

organizations? Explain that to me. 

Mr. ALLEN. There are differences and there are similarities. The 

differences are that, as you know, we are now in the eighth year 

of a partnership with FBI and the Justice Department called Innocence Lost, attacking the trafficking of children for sexual purposes 

within the United States. 

I have rescued 1,600 kids, 700 successful prosecutions. What we 

have found is that while pornography is an element of the operators transaction, the vast majority of those kids initially leave 

home as runaways, as runaways or homeless kids. So these are not 

kids who were snatched off the streets, by and large. 

With child pornography, what we are seeing is that the vast majority of the victims are kids who are—to whom the offender already has legitimate access and control. Many of the perpetrators 

are their parents or other family members or neighbors or coaches 

or friends. 

So overwhelmingly, these victims already have a hurdle in that 

they are very reluctant to tell, because the perpetrator is somebody 

trusted, who is in their lives already. 

So they are different, but it there is also an overlap. 

Mr. POE. Sheriff, how many cases do you have ongoing right now, 

child pornography cases? 

Mr. BROWN. Child pornography, well, the ICAC task force working with, we have 67 other affiliated agencies throughout southern 

Virginia, western Virginia and eastern Virginia, and probably the 

caseload now is several hundred. 

Mr. POE. How about the Sheriffs’ Association? Do you know, 

based upon your leadership of the Sheriffs’ Association? 

Mr. BROWN. No, sir, I do not. 

68 

Mr. POE. Mr. Rotenberg, Mr. Conyers talked about other access, 

other criminal penalties, or other criminal situations. By preserving the 18-month rule, do you see any issue involved in also 

civil litigation, where some lawyer on one side or the other of a divorce is going to want to subpoena that information as well, because it is now available would be available for 18 months? 

Mr. ROTENBERG. Well, I certainly think it is something that a 

good attorney would think about, because there is now information 

available that might be useful in the case or the complaint. So yes, 

there would be the opportunity for someone to request it. 

Mr. POE. Sheriff, you talked about needing more resources. Other 

than the 18-month retention, what else do you need? Just give me 

a few. Don’t give me a whole list. 

Mr. BROWN. I’ve got a list. 

Mr. POE. On this issue, how can we do a better job? Last question, just answer it briefly. 

Mr. BROWN. Probably the overriding is the funding for additional 

personnel in the task forces. 

Mr. POE. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Tennessee, Mr. Cohen? 

Mr. COHEN. Thank you, Mr. Chairman. 

I have a desire to work with Chairman Smith and Ms. 

Wasserman Schultz on the bill, because it is a serious issue and 

it is one that I’ve worked on in the past. 

But I am concerned about the sentencing structure, and I maybe 

should direct this question to the Chairman. But I have a concern. 

First of all the question to Mr. Allen that I think Chairman 

Smith asked about the mere possession, and the Chairman was answered—the response to his question was that you believe, based 

on prison data, that 40 percent of the people who view child pornography will engage in at some point. Is that correct? 

Mr. ALLEN. Well, I don’t want to say 40 percent, because it is 

very hard to prove. 

Mr. COHEN. It is hard to prove. That seemed very high to me, 

but you said 40. 

But the thing is, to make this a higher penalty, and even from 

your data, which I think is real high, 60 percent of the people 

would not have engaged and they are being punished more severely 

because of the 40 percent. It seems like in our system, where you 

let one guilty person go or 10 guilty people or that one innocent 

person be convicted or whatever. It seems like that—those figures 

are damning to the idea of mere possession folks getting these sentences. 

Mr. ALLEN. First, Mr. Cohen, we are not arguing for sentence 

disparity. We recognize in the existing sentence structure, distribution is more serious than possession, production is more serious 

than just distribution. 

Our argument is that there is a tendency in this country today 

to trivialize and minimize the possession of child pornography. ‘‘Oh, 

well, he just looked at the pictures.’’ Our argument is that possession, in and of itself, is a serious crime. It is not victimless crime. 

These are crime scene photos. These are images of the sexual 

abuse. 

69 

Mr. COHEN. I understand that. And I agree with you, but I think 

that there is still a level—do anyone of the three of you believe that 

the sentences should be doubled, as are proposed in this law, even 

though 71 percent of the judges said they should be lessened? Anyone of you think they should be doubled? And I want you to tell 

me how you think that is going to be an effective deterrent. 

Mr. ROTENBERG. We have no position on that issue. 

Mr. COHEN. Sheriff? 

Mr. BROWN. The Sheriffs’ Association—I, personally, I don’t believe it needs to be doubled. We need to get judges—all due respect; 

well, he just left—we need to get them to impose the sentences as 

are directed to them. We have so many judges that they really 

don’t understand is what is happening to children around this 

country in this arena. 

So, no, I would not say that they need to be doubled, but I would 

just like to see the judges give them what is due. 

Mr. COHEN. Well, I would hope that the Chairman would look at 

that in this bill. 

You know, generally, the Sentencing Commission does this and 

not the Congress. And the sentencing has gone on 1,500 percent 

since 1990 or something. Judges have indicated they feel the guidelines are already too high and an increased maximum sentence, 

such as in section 10, is not being requested. Seventy-one percent 

of judges to 70 percent in all these areas felt that they shouldn’t 

be increased. And I think that is just a mistake. 

I have a friend, not that good of a friend, but I knew him in elementary school and I have known him since. He was an attorney 

in Memphis, and he was convicted of having child pornography on 

his computer. He got the 5-year sentence. 

And while what he did was wrong, no question about it, I think 

there could have been alternative ways to handle his crime. And 

there was no proof or no suggestion that he ever tried to do anything with any children. He just had something on his—and he 

probably had some type of familial—that is a whole other story, because he had a brother who had some problems and something 

else. 

But regardless, the penalty just seemed too high. And I can see 

where he should have gone to prison, but not necessarily for 5 

years. And our justice system can’t afford to put everybody away 

unless there is some nexus between the time and the deterrent effect, and I don’t know that it was here. 

So, Mr. Chairman, if you would look at it, we can talk about 

that. I would like to help you with the bill, but I don’t think that 

we just doubling the sentences—I mean, it looks great. It sounds 

good. Does no good. 

And it really hurts the budget, and it would be better to take the 

money that would otherwise cost to incarcerate these people and 

give the personnel to Sheriff Brown to convict the perpetrators. 

Thank you, and I yield back the remainder of my time. 

Mr. SENSENBRENNER. The gentleman from California, Mr. Lungren? 

Mr. LUNGREN. Thank you very much. 

And I want to publicly thank the Chairman for coming out to my 

district when we had a hearing, or a briefing on the question of 

70 

human trafficking, in particular with respect to child trafficking. It 

surprises people to know that a lot of it is homegrown. I am sorry 

to say my own area of Sacramento, at least under FBI’s statistics, 

is one of the top five areas in the country for this, and that there 

does appear to be a nexus between trafficking in children, trafficking in young women, and computer images of child pornography. 

Just this week we had a man in Sacramento pleading guilty to 

sex trafficking in minors, and his two defendants are charged with 

possession and production of child pornography. 

About 3 weeks ago, child porn was found on a Folsom man’s lost 

cell phone, which depicted obscene material with children under 

14. That same week, two brothers in Roseville, which is just outside my district, pleaded guilty to child pornography charges with 

respect to those found on their computers. 

I can go on and on and just show you page after page after page. 

An 86-year-old man in Oroville previously convicted of sexually molesting minors pled guilty to conspiracy to possess child pornography, which was found on his computer. 

There is a problem. I think we all recognize. 

And, Mr. Rotenberg, you recognized it as well. Some of your concerns, it seems to me, are generic in that, at least as I understand 

your testimony, some problem with retention of these IP files for 

any period of time. I mean, the fact of the matter is they are retained for some period of time depending on the company. 

What this bill says, which is a bipartisan bill, which is similar 

to the bill that I introduced last Congress with Chet Edwards, simply says it requires you to retain this data for at least 18 months. 

So what we are doing is retaining data that if it is in existence, 

is available to law enforcement under the circumstances articulated 

here. 

So I guess my question, Mr. Rotenberg, is, is there a problem 

that you have with the access to this information by law enforcement in any event, or that the extension of time for which they are 

required to hold this information allows the potential for abuses in 

other circumstances? 

Mr. ROTENBERG. My concern, Mr. Lungren, is with a government 

mandate that requires communication providers to keep information they wouldn’t otherwise keep. 

And I want to say also, you know, I have been involved with this 

law since before its enactment, and I have seen all the various 

issues that have been raised over the years. And as you say on a 

bipartisan basis, I think the Members of the Congress have been 

able to make adjustments to the law over time to deal with exigency, for example. If you can’t get a warrant or you need backups 

or you become aware through the good work of Mr. Allen’s organization that there may be particular problems, I think those techniques have developed over time in response to the concerns you 

have. 

But this would be crossing a line. Because up to this moment, 

in the 25-year history of the Electronic Communications Privacy 

Act, there has never been a government mandate that says to ISPs, 

you must keep this data on all of your customers. And that is the 

basis of my—— 

71 

Mr. LUNGREN. So that is the crossing of the line? The fact that 

we require them to keep information that they otherwise had with 

respect to regular business proceedings, but no longer need them 

because of the nature of those business proceedings? 

Mr. ROTENBERG. They may or may not keep it. I mean, you have, 

for example, an 18-month requirement—— 

Mr. LUNGREN. Right. 

Mr. ROTENBERG. I understand the current practice in the industry, you know, is somewhere between 6 and 12 months, maybe 

some are a bit below, maybe some are a bit—— 

Mr. LUNGREN. But that is what our bill provides, that it be 18 

months. So why is that essentially different in nature, in terms of 

the action, the activity of the business and the activity of law enforcement when they have a reason to believe they would like to 

get this data? 

Mr. ROTENBERG. It is truly a very different view of wiretap law, 

because up to this point in time, the general approach has been to 

say, we will come to you when we have some reason to believe that 

one of your customers is doing something wrong. 

Mr. LUNGREN. Well, that is exactly what they are doing here. All 

they are saying is they want to make sure that the data has been 

retained. 

Mr. ROTENBERG. No, because the way data retention works, and 

the distinction between data retention and the current data preservation, is data retention says at the outset you are going to keep 

this information on everybody because we don’t know at this point 

in time—— 

Mr. LUNGREN. You are keeping information on everybody, but 

they are not making a request for everybody. They are coming to 

you with a request based on some information they have about a 

crime having been committed, allegedly. 

Mr. ROTENBERG. Yes, so there are at least two concerns there, 

and this goes to the second part of your question. 

The two concerns are, one, everybody, and I do mean everybody, 

now is looking more closely data minimization techniques, because 

they are realizing just how difficult it is to safeguard the information they are storing. 

Mr. LUNGREN. So when you are talking about data minimization, 

you are talking about cutting down on the amount of information 

they store as opposed to criminal minimization, which we use in 

the—— 

Mr. ROTENBERG. That’s correct, and that is—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Pennsylvania, Mr. Marino? 

Mr. MARINO. Thank you, Chairman. 

Gentlemen, thank you for being here. Mr. Allen and Sheriff, I 

want to thank you for your work. 

I want to preface my comments and my question a little bit. I 

was a prosecutor for 18 years. I was a district attorney for 12 

years. And I was a U.S. Attorney for 6 years. And I personally 

prosecuted these types of cases. 

And the overwhelming factor is there is a plethora, an overabundance of this type of abuse taking place here in the United States, 

and it is growing. In my office, the Middle District of Pennsylvania, 

72 

it was very successful in prosecuting a sex trafficking case involving individuals over the age of 18 but below the age of 18 as well. 

And many, many people went to prison for a very long time. 

And one of the impetuses, one of the driving factors was going 

back through and checking phone records, going back through and 

checking computer records, and capturing these images. 

And unfortunately, I have had the opportunity in several cases 

to sit down and talk with 7- and 8- and 10-year-olds who have been 

exposed to this and have been photographed. 

And, Mr. Rotenberg, with all due respect, and I certainly respect 

your opinion and your privacy issues, but I don’t know if you have 

had the opportunity to sit down and talk to these children that 

have been abused, because in many situations, they are threatened. Many times it is from a person they now who is sexually 

abusing them and taking these photos. 

And it is by accident in many cases that this information comes 

to fruition to another adult, or actually, to another child who goes 

home and tells their parents what their friends just explained to 

them. 

And I am failing to see the concern that you have over an 18- 

month period, because in many of the cases that I have been exposed to and actually prosecuted, we hit stumbling blocks because 

some providers eliminated in 6 weeks, some providers emanated in 

3 months. And many times, the child does not bring this information to somebody until a year or more later. 

And if it is limited to the sexual pornography on children, and 

if it is limited to access in law enforcement, forgetting the argument for a moment that it is a mandate that never existed—we in 

law enforcement always are finding new techniques in finding perpetrators. Simply because there has never been a mandate out 

there, I don’t understand your justification as to opposing this 18- 

month period. 

Would you care to help enlighten me again on this? 

Mr. ROTENBERG. Mr. Marino, there is absolutely no dispute 

about the severity of the crime or the need to prosecute effectively. 

But it would seem to me, and certainly listening to the statements 

of the other witnesses and the Members of the Committee, if that 

is the goal, you would began by giving resources to law enforcement so they can sift through the enormous amount of data they 

have. In this bill, you would extend coverage to providers of wireless services, which will become the obvious place that people will 

go that that you are concerned about getting after. And you would 

try to focus the investigations at the outset at exactly the kinds of 

perpetrators you are concerned about. 

Data retention doesn’t focus resources on the problem. It says, in 

effect, we just don’t know what we are going to confront. We confront everything. 

Mr. MARINO. But you have to realize that data retention in situations like this is critical, so as much as I would like to see the sheriff have 100 more individuals working on this, without the data retention, it is going to be futile, because data retention is critical. 

I mean, I have seen too many children, I have been in hospitals 

with too many children and talked to them and then have them 

testify, to not take the step into retaining this information. 

73 

With all due respect, I really suggest that if you have the opportunity, you do more research in the area of what this is doing to 

these children, what they are put through, and the pathetic, the 

sick people that are out there exposing this. And we have to start 

by making it—I believe that we should double the punishment, 

from what I have seen and the kids that I have worked with, because nothing is going to get their lives back to what it should be 

as a 6-, 7-, 8-, 10-year-old. 

I have seen situations where 3-month-olds have been exposed 

and sexually abused. 

I commend you gentlemen for what you are doing. 

And, Mr. Rotenberg, I respect your position, but this is a situation where I can’t find any defense in not increasing this 18-month 

period. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The Chair will yield himself the final 5 minutes for questioning. 

First of all, let me say that I am concerned that this bill and the 

data retention will allow law enforcement to use it far beyond investigating child pornography. 

Let me ask you, Sheriff Brown, do you think that you need data 

detention for crimes other than child pornography crimes? 

Mr. BROWN. Personally, no, on a local level. Again, as I have indicated, I am here for ICACs and National Sheriffs on the data retention. 

I am more interested, again, the 18 months—and I think I speak 

for every ICAC and every department that has a cyber-unit that 

is doing this work, we just need a standard, a uniformed amount 

of time. I mean, 30 days is not enough. I don’t think 6 months is. 

Eighteen months? I don’t know. That is up to you distinguished 

gentlemen and women of Congress to decide. 

But we would like to see a standard. Right now, there is no 

standard. We will go to one and it is a couple of weeks, the momand-pop ISP. Others it is a month. Some, I think the person to my 

left here is saying some are 6 months, 6 months to maybe 12 

months. I don’t know of any that are 12 months. It may be; I am 

not aware. 

But I would like to see, and we would like to see, a standard. 

Mr. SENSENBRENNER. Okay. I am looking at the subpoena authority in section 7, and it says the administrative subpoenas 

issued in accordance with the existing laws solely for the purpose 

of investigating unregistered sex offenders, as defined by another 

section of the statute, and that is amended and section 11. 

From the ISP address, how do you know whether someone is a 

registered or unregistered sex offender, Mr. Allen? 

Mr. ALLEN. Well, the premises of this is that the vast majority 

of these cases, 95 percent of the cases in which the Marshals are 

able to locate fugitive sex offenders is through communication data. 

Most of that as reported to us by the Marshals Service is Internetbased data. 

Currently, they are required to get—what is it called?—an All 

Writs Act order. They go to the U.S. Attorney. The U.S. Attorney 

initiates a process. Typically, it takes 2 months. Two months is a 

lifetime when you are trying to track down a fugitive. 

74 

And again, the very nature of the fact that the offender is a fugitive means that there has been judicial review. There is a warrant 

for his apprehension. 

So you know, the argument here is that giving them the subpoena authority enables them with the same kind of access that 

the FBI has, but enables them to circumvent the All Writs Act 

process, and be able to identify that information, obtain that information constantly. 

Mr. SENSENBRENNER. Well, if most of these people are fugitives 

and the FBI is on the lookout for them, why does the Marshals 

Service need an additional administrative subpoena authority? 

Mr. ALLEN. Well, because the reality, Mr. Chairman, is that it 

is the Marshals who are in the fugitive business. It is the Marshals 

who are the primary trackers and locators of criminal fugitives in 

this country, and particularly as it relates to sex offenders. It is the 

Marshals who are tasked by Congress with playing that role, in the 

Adam Walsh Act. 

So again, our view on this—— 

Mr. SENSENBRENNER. Well, we will look at that in a few weeks, 

so it is—— 

Mr. ALLEN. I understand. 

No, our view is that this is an essential tool needed to carry out 

the role that you have given them. 

Mr. SENSENBRENNER. Well, you know, let me say that I have always felt negatively about administrative subpoenas. You know, I 

think that if you want a subpoena, it should be a judicial subpoena, 

because at least that way you have somebody outside of law enforcement reviewing whether this—or having the possibility of reviewing whether the subpoena should be issued. 

I fought to keep administrative subpoena authority out of the Patriot Act, and I was successful on that. And what does law enforcement do? They use an existing administrative subpoena law called 

National Security Letters basically to get around the fact that they 

didn’t have administrative subpoena authority as they asked for. 

This is my concern, is that the administrative subpoenas given 

to the Marshals Service on this is going end up being used for fishing expeditions like the FBI did with National Security Letters on 

the Patriot Act. 

And that is a concern that I think you should share, Mr. Allen, 

because if you don’t share it, you are going to see this law being 

trashed just like the Patriot Act was, because law enforcement 

used nonjudicial review authority to be able to grab some evidence 

that may or may not involve an unregistered sex offender. 

I think my time is up. I have spoken my piece on this. 

I would like to thank the witnesses for coming today. This bill 

needs a lot of fixing up. It is not ready for prime time. 

The gentleman from Virginia? 

Mr. SCOTT. I ask unanimous consent that a letter from Full 

Channel showing the impact on small providers be entered into the 

record. 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 

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67309B-1.eps
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67309B-2.eps
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67309B-3.eps
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*Prior to the printing of this hearing, a decision was made not to include the referenced material. 

Mr. SMITH. Mr. Chairman? 

Mr. SENSENBRENNER. The gentleman from Texas? 

Mr. SMITH. I ask unanimous consent that a statement prepared 

by Congresswoman Debbie Wasserman Schultz,* the lead Democratic cosponsor of H.R. 1981, as well as letters in support of H.R. 

1981 from the National Sheriffs’ Association and the International 

Union of Police Associations be made a part of the record. 

Mr. SENSENBRENNER. Well, I am glad that the gentleman from 

Texas is putting things in the record from the Chair of the Democratic National Committee, and without objection we will put that 

in the record. [Laughter.] 

[The information referred to follows:] 

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Mr. SENSENBRENNER. Without objection, the Committee stands 

adjourned. 

[Whereupon, at 11:32 a.m., the Subcommittee was adjourned.] 


67309H.eps
(81) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on 

Crime, Terrorism, and Homeland Security 

First, I would like to thank Chairman Sensenbrenner and Ranking Member Scott 

for holding today’s hearing on H.R. 1981, the ‘‘Protecting Children from Internet 

Pornographers Act of 2011.’’ 

I would also like the thank today’s witnesses for taking time out of their schedule 

to share their expertise with us: 

• Mr. Ernie Allen, President and CEO, National Center for Missing and Exploited Children 

• Sheriff Michael J. Brown, Bedford County Sheriff’s Office 

• Mr. Marc Rotenberg, President, Electronic Privacy Information Center 

H.R. 1981, the ‘‘Protecting Children from Internet Pornographers Act,’’ focuses on 

sex offenses against children and includes, amongst other things, a mandate that 

internet service providers (ISPs) retain data for a period of 18 months, and directives to the United States Sentencing Commission to severely increase penalties for 

certain sex offenses. 

Resolving this issue of data retention has been identified as critical for assisting 

federal law enforcement in online child pornography and child exploitation investigations. However, at crux of this issue is determining a balance between the necessary amount of data retention which would best serve law enforcement, the impact of added retention costs on providers, and the looming privacy concerns of the 

majority of law abiding Internet users. 

To be sure, the issues regarding child pornography, child trafficking, and other 

internet crimes that may involve young people are of great concern to me. As Chairwoman of the Congressional Children’s Caucus, I have focused a lot of energy on 

ways to combat these types of crimes. Furthermore, during the 111th Congress, this 

subcommittee, under the direction of then Chairman Bobby Scott, examined multiple law enforcement methods for effectively addressing these types of crimes. In 

January of this year, an additional hearing was held to examine data retention and 

its utility for prosecuting Internet crimes. 

From those hearings and from many experts in this field, we are constantly hearing that one of the keys to combating these types of Internet crimes against children 

is access to information in a coordinated and organized manner. There are numerous organizations and tasks forces, such as the Internet Crime Complaint Center 

(IC3), the Innocent Images National Initiative (IINI), and the Internet Crimes 

Against Children Task Force (ICAC), that are in place to handle Internet crime 

cases, but it is necessary for there to be a coordinated response with law enforcement in order for these groups to be most effective. 

A recent GAO report also points out that the biggest contributing factor to the 

slowed pace of child pornography and exploitation cases is the backlog of forensic 

evidence that awaits processing, an issue that can truly only be addressed with additional resources. 

Protecting children from Internet pornographers and child exploitation rings is 

not a partisan issue. Both Democrats and Republicans alike would agree, as demonstrated by the bipartisan efforts to draft H.R. 1981, that something must be done 

to ensure that our system of protecting our children against Internet predators is 

a strong and effective tool. No one wants to see another child fall victim to an Internet savvy predator or trafficker. Attorney General Eric Holder has been quoted as 

saying that, ‘‘certain data must be retained by ISPs for reasonable periods of time 

82 

so that it can be accessible to law enforcement.’’ I, and many of my colleagues I presume, agree wholeheartedly with the Attorney General’s words. 

Law Enforcement Needs: 

Yes, there needs to be a consistent data retention standard in place for Internet 

Service Providers in order to better aide law enforcement. However, we can not ignore the issues and questions raised by the idea of data retention, especially when 

the standard being proposed is so broad. 

H.R. 1981 proposes a retention period of 18 months, a number based on an antiquated FCC regulation that governs tolled telephone records. This amount of retention time may be unduly burdensome on some ISP’s, especially those smaller regional entities. It may also lead to other issues which this bill does not address, 

such as privacy concerns, storage requirements, and the possibility of outsourcing 

of data storage to foreign entities. 

Although current law requires ISP’s to retain records at the request of law enforcement for at least 90 days, the current industry-wide norms go farther. According to the National Cable and Telecommunication Association, the industry norm for 

data retention is 6-months. In a spirit of cooperation and an effort to aide law enforcement, they would be willing to increase their data retention standard to oneyear. Though there are industry norms, there is still a lot of inconsistency amongst 

ISPs regarding their data retention practices. For instance, AOL stores data for 7 

days, which Comcast stores data for 2 years. It is imperative that a consistent industry standard be implemented, either by the industry itself or by Congress, that 

takes into account the aforementioned concerns. 

Storage is Costly: 

In the past, there have been legislative proposals that would require ISPs to retain data for all of their customers for at least 2 years—an amount of time thought 

to be excessive. H.R. 1981 proposes an 108-month retention period. While the idea 

of an 18-month data retention requirement may help to solve the problem for law 

enforcement if organized properly, it may also trigger some other problems to arise 

as well, especially for the ISPs. 

Storage of such voluminous amounts of information can be extremely costly. Moreover, organization of so many terabytes of data so that it can be effectively utilized 

can also be very costly. For a large national ISP, absorbing these costs may not be 

too difficult, although I’d assume such costs would be trickled down to consumers, 

resulting in higher rates experienced by end users. However, for smaller ISPs, those 

who are regional, local or minority owned, such costs could impose hardships on 

their ability to compete. Furthermore, these smaller ISP’s may be forced to 

outsource the data retention practices to a third party, which raises another concern 

about the protection and privacy of such information. 

Privacy Concerns: 

To be sure, the data retained by ISPs would contain some rather personal information of their customers. The Internet is a huge part of most people’s lives, and 

majority of Internet users are law abiding citizens who are using the Internet in 

lawful ways. Storing a history of people’s day-to-day online activity could certainly 

impose upon a person’s right to privacy. Therefore, if we are to impose a data retention requirement on ISPs, we must consider the privacy concerns of users, and furthermore, how the information will be secured and protected. 

Unfortunately, H.R. 1981 does not address this issue, and relies on standards already in place at the industry level. While the industry may have standards in place 

to govern privacy concerns, I am hesitant to support legislation which requires the 

retention of such private and personal information without putting necessary privacy safeguards in place. 

We should be concerned about who would be handling this information and who 

would have access to it—both internally at ISPs and within law enforcement agencies and child Internet crime task forces and organizations. Also, we should be considering who would be liable for the privacy invasion and violation if there is ever 

a breach of security, or if data bases of retained information are hacked. 

Lastly, we should be concerned about where the information is retained—will it 

be retained physically on a server? Virtually in a cloud? What happens if an ISP 

decides to outsource the retention services to a third party, or even more concerning, 

a foreign entity. These are all concerns that I believe legislation requiring the retention of personal information should address. 

Despite the fact that many of these issues were raised in the January hearing 

held on this subject, there was still a failure to address them in this legislative proposal. It is imperative that we come to a solution that balances the needs of the 

law enforcement community and the privacy rights of consumers. As Chairwoman 

83 

of the Congressional Children’s caucus, and a member representing the border state 

of Texas where child sex trafficking and exploitation is rampant, I firmly believe 

that something must be done to aide law enforcement efforts in combating these 

crimes. However, it must be done responsibly. 

I look forward to working with my colleagues on both sides of the aisle to find 

an effective and efficient solution that will ensure the safety of children as the use 

the Internet, and that will effectively help law enforcement prevent the trafficking 

of child pornography. We can not afford to allow more children to become victims. 

Again, I would like to thank the Chairman and Ranking Member for holding this 

hearing, and thank the witnesses for their testimony. 

f 

84 

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67309C.eps
85 

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67309E.eps
86 

f 


67309F.eps
87 

f 


67309G.eps
88 

Æ 


67309I.eps