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[Senate Report 108-2]
[From the U.S. Government Publishing Office]

                                                         Calendar No. 7
108th Congress                                                   Report
                                 SENATE
 1st Session                                                      108-2
======================================================================
 
                        THE PROTECT ACT OF 2003

                                _______
                                

               February 11, 2003.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 151]

    The Committee on the Judiciary, to which was referred the 
bill (S. 151) to amend title 18, United States Code, with 
respect to the sexual exploitation of children, and for other 
purposes, having considered the same, reports favorably 
thereon, with amendments, and recommends that the bill, as 
amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Legislative history..............................................2
III. Discussion.......................................................3
 IV. Vote of the Committee...........................................11
  V. Section-by-section analysis.....................................12
 VI. Cost estimate...................................................15
VII. Regulatory impact statement.....................................15
VIII.Additional views................................................16

 IX. Changes in existing law.........................................37

                               I. Purpose

    The purpose of S. 151, the Prosecutorial Remedies and Tools 
Against the Exploitation of Children Today Act or ``PROTECT Act 
of 2003,'' is to restore the government's ability to prosecute 
child pornography offenses successfully. The bill, as amended 
and reported by the Senate Judiciary Committee, would improve 
the prosecution of child pornography offenses by: (1) creating 
a new definition of ``identifiable minor'' that would include 
images that are ``virtually indistinguishable'' from actual 
children; (2) creating an absolute affirmative defense for any 
pornographic image that was not produced using any actual 
children; (3) creating a new offense for certain offers to buy 
or sell child pornography; (4) creating a new offense for 
obscene child pornography; (5) creating a new civil cause of 
action for those aggrieved by the production, distribution or 
possession of child pornography; and (6) expanding the 
categories of sexually explicit images covered by existing 
record keeping requirements. S. 151 also would accomplish 
several other changes in existing law to aid in the 
investigation and prosecution of child pornography offenses, 
such as creating extraterritorial jurisdiction and requiring 
that additional prosecutors be assigned to focus on these 
crimes.

                        II. Legislative History

    S. 151 was introduced in the 108th Congress by Senator 
Orrin Hatch on January 13, 2003. Senator Leahy was the 
principal cosponsor and five other Senators joined as 
cosponsors, Senators Bennett, Grassley, DeWine, Edwards, 
Schumer and Shelby. The bill was referred to the Committee on 
the Judiciary. The Judiciary Committee met in executive 
session, with a quorum present, to consider S. 151 on January 
30, 2003. Two amendments were proposed and adopted. The first 
was offered by Senators Hatch and Leahy; the second was offered 
by Senator Hatch. The Hatch-Leahy amendment was approved by 
unanimous consent. The Hatch amendment was approved by voice 
vote, with Senator Leahy noting his objection to it. The bill, 
as amended, was approved by the Judiciary Committee by voice 
vote, and ordered favorably reported to the Senate.
    S. 151 previously had been introduced in the 107th Congress 
by Senator Orrin Hatch on May 15, 2002, as S. 2520. Senator 
Leahy was the principal cosponsor and seven other Senators 
joined as cosponsors, Senators Sessions, Hutchinson, Brownback, 
Grassley, DeWine, Edwards, Bennett, and Lincoln. The bill was 
referred to the Committee on the Judiciary.
    The Judiciary Committee held a hearing on S. 2520 on 
October 2, 2002, and heard testimony from Daniel P. Collins, 
Associate Deputy Attorney General and Chief Privacy Officer, 
United States Department of Justice; Frederick Schauer, 
Professor of Law, John F. Kennedy School of Government, Harvard 
University; Anne M. Coughlin, Professor of Law, University of 
Virginia School of Law; and Daniel S. Armagh, Director, Legal 
Resource Division, National Center for Missing and Exploited 
Children. At that time, the Committee also considered the 
evidence and testimony presented on June 4, 1996, during the 
hearing on the Child Pornography Prevention Act of 1996, 
detailing the problems of child pornography and the 
technological changes in the production and dissemination of 
these materials.
    The Judiciary Committee met in executive session to 
consider S. 2520 on November 14, 2002, during the post-
election, ``lame duck'' session of the 107th Congress. A 
substitute amendment offered by Senators Hatch and Leahy was 
approved by unanimous consent, as was an additional amendment 
offered by Senator Leahy. Two other amendments by Senator Hatch 
were approved by the Judiciary Committee, although Senator 
Leahy noted his objection to these. The bill, as amended, was 
ordered favorably reported to the Senate.
    S. 2520, as reported by the Judiciary Committee, was 
approved by the Senate by unanimous consent in the evening of 
November 14, 2002. The House of Representatives had passed a 
similar bill, H.R. 4623, on June 25, 2002. Because that bill 
was non-identical to S. 2520, however, neither version could be 
approved by both houses before the 107th Congress adjourned.

                            III. Discussion

A. Background and history: The Child Pornography Prevention Act of 1996

    In 1996, the Judiciary Committee held hearings and 
conducted extensive research into the problem of child 
pornography. The Committee concluded that the problem was 
immense. Child pornography generated huge sums of illicit 
money. Worse yet, it played a central role in the exploitation 
and sexual abuse of children. The Committee found that child 
pornography results in the actual abuse of children in two 
ways. First, ``[c]hild pornography stimulates the sexual 
appetites and encourages the activities of child molesters and 
pedophiles, who use it to feed their sexual fantasies.'' S. 
Rep. No. 104-358, pp. 12-13 (1996). Second, ``[c]hild molesters 
and pedophiles use child pornography to convince potential 
victims that the depicted sexual activity is normal practice; 
that other children regularly participate in sexual activities 
with adults or peers.'' Id. at 13-14.
    The harms caused by child pornography were not new. By 
1996, however, technology had changed in a manner that 
materially impacted the enforcement of child pornography laws. 
The Committee found that ``[c]omputers can also be used to 
alter sexually explicit photographs, films and videos in such a 
way as to make it virtually impossible for prosecutors to 
identify individuals, or to prove that the offending material 
was produced using children.'' Id. at 16. In response to this 
concern, the Committee approved the Child Pornography 
Prevention Act of 1996 (``CPPA'') and expanded then-existing 
law, which only prohibited sexually explicit depictions of 
actual children, to include depictions that ``appear to be'' of 
actual children. After approval by both the Senate and the 
House of Representatives, the President signed the CPPA into 
law on September 30, 1996.

B. Ashcroft v. Free Speech Coalition

    The CPPA tackled the problem of technology and child 
pornography by prohibiting the possession, production or 
distribution of material that ``appears to be'' child 
pornography. This is so whether the material was actually 
produced entirely on a computer (``virtual porn''), by using 
technology to alter an image of a real child to make the child 
unidentifiable, or by using youthful-looking adults. Four 
circuit court of appeals had sustained the constitutionality of 
the CPPA, United States v. Fox, 248 F.3d 394 (5th Cir. 2001); 
United States v. Mento, 231 F.3d 912 (4th Cir. 2000); United 
States v. Acheson, 195 F.3d 645 (11th Cir. 1999); United States 
v. Hilton, 167 F.3d 61 (1st Cir. 1999), prior to a ruling in 
the Ninth Circuit that invalidated key provisions of the CPPA 
under the First Amendment. The Supreme Court affirmed this 
ruling in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 
(2002).
    In Free Speech Coalition, the Court ruled that two sections 
of the CPPA were unconstitutionally overbroad. The first banned 
the distribution of an item in a way that ``conveys the 
impression'' that it contains a depiction of ``a minor engaging 
in sexually explicit conduct.'' 18 U.S.C. Sec. 2256(8)(D). The 
Court observed that, as written, subsection (8)(D) prohibited 
the downstream possession of materials that earlier had been 
billed as child pornography. Id. 122 S. Ct. at 1406.
    The Court next invalidated the CPPA's prohibition of any 
visual depiction that ``appears to be'' of a minor engaging in 
sexually explicit conduct. 18 U.S.C. Sec. 2256(8)(B). New York 
v. Ferber, 458 U.S. 747 (1982), ruled the Court, categorically 
denies First Amendment protection only to sexually 
explicitdepictions of actual children. 122 S. Ct. at 1401. Stated 
differently, sexually explicit depictions of virtual children and 
youthful looking adults are beyond Ferber's categorical rule. Because 
the ``appears to be'' language in subsection (8)(B) swept in such 
images, and because the ``reasons the Government offer[red] in 
support'' of this provision were insufficient under the First 
Amendment, Id. at 1405, the Court ruled that it was unconstitutionally 
overbroad.

C. Defining the Problem in the Wake of Ashcroft v. Free Speech 
        Coalition

            i. Hampering prosecutions
    The Supreme Court's decision in Free Speech Coalition has 
greatly impaired the government's ability to bring successful 
child pornography prosecutions. This is so because prosecutors 
typically are unable to identify the children depicted in child 
pornography. Not surprisingly, these children are abused and 
victimized in anonymity, even when the child pornography is 
produced within the United States. Prosecutions therefore rest 
on the depictions themselves; juries are urged to infer the age 
and existence of the minor from the sexually explicit depiction 
itself. While these depictions may appear in a photograph or a 
videotape, they increasingly are appearing in a computer or 
digital image that is sold, traded, bartered, exchanged or 
simply downloaded over the internet.
    Since the ruling in Free Speech Coalition, defendants in 
child pornography cases have consistently claimed that the 
images in question could be virtual. By raising this ``virtual 
porn defense,'' the government has been required to find proof 
that the child is real in nearly every child pornography 
prosecution. Some of these defense efforts have already been 
successful. See, e.g., United States v. Sims, 220 F. Supp. 2d 
1222 (D.N.M. 2002) (after the decision in Free Speech 
Coalition, court entertained motion to reconsider previously 
denied motion for judgment of acquittal; judgment of acquittal 
was granted with respect to one set of images); United States 
v. Bunnell, 2002 WL 927765 (D. Me. 2002) (after Free Speech 
Coalition, motion to withdraw guilty plea granted); see also 
United States v. Reilly, 01 Cr. 1114 (RPP), 2002 WL 31307170 
(S.D.N.Y. Oct. 15, 2002) (after Free Speech Coalition, motion 
to withdraw guilty plea granted; court held that the government 
must prove beyond a reasonable doubt that the defendant knew 
that the images depicted real children). Left unchecked, this 
problem threatens to cripple a large number of child 
pornography prosecutions. Indeed, proving the existence of an 
actual minor beyond a reasonable doubt from a digital image is 
extremely difficult when technological advancements have made 
it possible to disguise depictions of real children to make 
them unidentifiable and to make depictions of real children 
appear computer-generated. The National Center for Missing and 
Exploited Children (``NCMEC'') assembled a photographic array 
containing both real and virtual pictures of children, and 
presented it to members of the House Judiciary Committee 
Subcommittee on Crime during hearings that were held on May 1, 
2002. An ordinary person looking at these pictures would be 
hard-pressed to distinguish between the real and virtual 
depictions.
    The Senate Judiciary Committee first noted the problematic 
existence of the virtual porn defense in 1996. Since then, it 
has become even worse, as witnesses before the Senate Judiciary 
Committee have testified and as the NCMEC array makes clear. 
Absent legislation, this problem threatens to become entirely 
unmanageable in the near future. The unyielding growth of 
technology will further frustrate law enforcement efforts to 
combat child pornography. As Senator Leahy stated on 
introducing S. 2520 on May 15, 2002:
          The Free Speech decision has placed prosecutors in a 
        difficult position. With key portions of the CPPA gone, 
        the decision invites all child porn defendants, even 
        those who exploit real children, to assert a ``virtual 
        porn'' defense in which they claim that the material at 
        issue is not illegal because no real child was used in 
        its creation. The increasing technological ability to 
        create computer images closely resembling real children 
        may make it difficult for prosecutors to obtain prompt 
        guilty pleas in clear-cut child porn cases and even to 
        defeat such a defense at trial, even in cases where 
        real children were victimized in producing the sexually 
        explicit material. In short, unless we attempt to 
        rewrite portions of the CPPA, the future bodes poorly 
        for the ability of the federal government to combat a 
        wave of child pornography made ever more accessible 
        over the Internet.

    In addition to arming defendants with a powerful defense, 
the ruling also has caused prosecutors to shy away from 
bringing some child pornography cases. After the Free Speech 
Coalition decision, prosecutors from across the country 
informed NCMEC that they would dismiss pending child 
pornography prosecutions unless NCMEC could identify the 
children contained in the charged images. Many prosecutions, in 
fact, were dismissed. And even the prosecutions that remain 
have been significantly and adversely affected by the decision 
because prosecutors need to devote significantly more resources 
to each child pornography case than ever before.
            ii. Creating an illusory, but effective, virtual porn 
                    defense
    The steady advance of technology makes certain that life-
like images of children can be created on a computer, thereby 
providing a potent basis to doubt that a particular depiction 
is that of an actual minor. But the state of the record today 
indicates that a totally virtual creation would be both time-
consuming and, for now, prohibitively costly to produce. 
Accordingly, it remains true that the overwhelming majority of 
child pornography depicts actual children. The Committee finds 
that child pornography results from the abuse of real children 
by sex offenders; the production of child pornography is a 
byproduct of, and not the primary reason for, the sexual abuse 
of children. Leading experts agree that, to the extent that the 
technology exists to computer generate realistic images of 
child pornography, the cost in terms of time, money, and 
expertise is--and for the foreseeable future will remain--
prohibitively expensive. As a result, for the foreseeable 
future, it will be more cost-effective to produce child 
pornography using real children. Moreover, there is no evidence 
that the future development of easy and inexpensive means of 
computer generating realistic images of children would stop or 
even reduce the sexual abuse of real children or the practice 
of visually recording that abuse. Whether real or life-like 
(but virtual), child pornography fuels the fantasies of 
pedophiles, often leading to the actual abuse of real children.
    Even though the use of real children is still the most 
cost-effective and empirically demonstrated method of producing 
child pornography, the mere existence of a virtual porn defense 
nonetheless has two unfortunate consequences. First, it 
provides a ready defense against prosecution under laws that 
are limited to sexually explicit depictions of actual minors. 
Second, it encourages producers and distributors of child 
pornography to alter depictions of actual children in slight 
ways to make them not only unidentifiable, but also appear as 
if they were virtual creations. Unlike the weighty task of 
creating an entire image out of whole cloth, it is not 
difficult or expensive to use readily available technology to 
disguise depictions of real children to make them 
unidentifiable or to make them appear computer-generated.

D. Responding to the problem

    S. 151 is designed to aid child pornography prosecutions in 
a constitutionally responsible way. This bill is a response to 
the problems faced by prosecutors in the wake of Free Speech 
Coalition; it is not designed to challenge that decision in any 
way. To the contrary, S. 151 has been carefully written to work 
within the limitations established by that decision. S. 151 
accomplishes this goal by permitting the government to 
establish its case-in-chief when the children portrayed in 
sexually explicit depictions appear virtually indistinguishable 
from actual minors. If the government meets this burden, S. 151 
nonetheless provides an absolute defense if the defendant can 
show that the child pornography that forms the basis of his 
prosecution was not produced using any actual minors.
            i. The definitional vehicle
    S. 151 addresses the problem of the virtual porn defense by 
creating a new definition of ``child pornography'' in section 
2256(8) and a new definition of ``identifiable minor'' in 
section 2256(9). Under these new definitions, in conjunction 
with existing section 2252A, it is unlawful to possess or 
distribute any visual depiction of sexually explicit conduct 
involving ``a computer image, computer generated image, or 
digital image that is of, or is virtually indistinguishable 
from that of, an actual minor.'' Stated differently, the 
Government establishes a violation of section 2252A by proving 
the existence of a computer image that is virtually 
indistinguishable from an actual child. This is so even when 
the government cannot prove the actual identity of the minors 
depicted. This new definition S. 151 also draws support from 
the factual record: The overwhelming majority of existing child 
pornography was produced by using actual minors, and no change 
in these production methods will occur in the foreseeable 
future.
    Having created a new definition of ``identifiable minor,'' 
S. 151 proceeds to narrow it in two important ways. First, S. 
151 defines a ``virtually indistinguishable'' depiction to be 
one that ``an ordinary person * * * would conclude * * * is of 
an actual minor.'' By way of illustration, the bill makes clear 
that ``drawings, cartoons, sculptures'' and the like do not 
qualify as ``virtually indistinguishable.'' This definition 
makes clear that ``virtually indistinguishable'' depictions are 
ones that look just like actual children to an ordinary 
observer (not an expert).
    Second, S. 151 narrows the ``identifiable minor'' 
definition further by creating a new definition of ``sexually 
explicit conduct,'' which will be codified in section 
2256(2)(B). Subsection (2)(B) creates a less inclusive 
definition of ``sexually explicit conduct'' than current law 
provides. Compare 18 U.S.C. Sec. Sec. 2256(2)(A) with 
2256(2)(B). S. 151 thus creates the following dichotomy. In 
prosecutions where the Government must affirmatively prove the 
existence of an actual minor, it may draw upon the broader 
definition of sexually explicit conduct contained in current 
law. But in prosecutions where the Government proves a computer 
image that is virtually indistinguishable from an actual minor, 
it is limited to the narrower definition of sexually explicit 
conduct provided in S. 151.
            ii. A complete affirmative defense
    Not only does S. 151 craft these new definitions in a 
narrowly tailored way, but the bill also creates an affirmative 
defense provision that would absolve defendants from liability 
upon a showing that the depictions in question were not made by 
using actual children. Stated differently, if the government 
establishes a prima facie case, the defendant still cannot be 
convicted if he shows that the depictions were produced by 
using only virtual creations or youthful-looking adults.
    The affirmative defense created by S. 151 is considerably 
broader than the existing provision that it replaces.\1\ Unlike 
existing section 2252A(c), the new affirmative defense is not 
limited to youthful-looking adults, and does not include a 
requirement that the material was never represented to be child 
pornography. The Committee intends the affirmative defense 
provision created by S. 151 to be a complete defense whenever 
the defendant can show that no actual children were used in 
creating the depictions which form the basis of the 
prosecution.\2\
---------------------------------------------------------------------------
    \1\ In their Additional Views, Senators Leahy, Biden and Feingold 
maintain that this affirmative defense is somehow incomplete because it 
does not apply to the new obscenity provision, to be codified at 18 
U.S.C. Sec. 2252B. See Additional Views at C(2). This is a remarkable 
claim. There has never been any affirmative defense to obscenity. These 
Senators fail to explain why obscene materials should be legalized 
because no actual children were used to prepare it. Nor do they provide 
any basis to support their unsubstantiated claim that providing an 
affirmative defense to obscenity would somehow make the other 
provisions of S. 151 more immune from constitutional challenge.
    \2\ Prosecutions brought under the definition of child pornography 
contained in section 2256(8)(C) generally charge the accused with 
having taken the innocent image of an actual child and ``morphing'' it 
into a sexually explicit depiction. Under current law (which was not 
challenged in Ashcroft v. Free Speech Coalition) only one affirmative 
defense is available in a morphing prosecution: proof that only 
pictures of adults were used. S. 151 keeps this affirmative defense 
intact. However, S. 151 explicitly excludes morphing prosecutions from 
the new affirmative defense that ``the alleged child pornography was 
not produced using any actual minor or minors.'' The reason for this is 
simple. The affirmative defense will be unavailable if the evidence 
shows that the image was produced, directly or indirectly, from the 
sexual abuse of a child. Thus, the affirmative defense is unavailable 
both for a ``first generation'' image that directly records the sexual 
abuse of a child and for a later generation image that uses such an 
image. In either situation, it cannot be said that ``the alleged child 
pornography was not produced using any actual minor or minors.'' By 
contrast, the morphing provision is explicitly aimed at the creation of 
a sexually explicit image using an innocent image of a child. Because 
many morphed images thus do not use, either directly or indirectly, a 
sexually explicit image of any child, it could be argued (incorrectly) 
by some that it does not involve any ``use'' of a child and fits within 
the affirmative defense. If such an argument were successful, it could 
defeat the entire point of the morphing provision. To eliminate any 
possible doubt on this issue, the morphing provision has been expressly 
excluded.
---------------------------------------------------------------------------
    It is well-settled that Congress can define the elements of 
an offense. Much like other affirmative defenses that exist in 
law, such as self-defense, insanity or provocation, this 
provision places the burden of proof on the party that is in 
the best position to determine the pertinent facts. The person 
who creates or receives child pornography certainly is in a 
better position to ascertain whether or not the children 
depicted are real (and to keep only those items that do not 
involve actual children) than a prosecutor who discovers these 
items at the end of the day and, due to advances in technology, 
has no idea where they originally came from or any reasonably 
effective means for tracking their source. It is beyond 
peradventure that the government has the right and the 
obligation to bring successful prosecutions for child 
pornography offenses. Coupled with the new definitions for 
``identifiable minor,'' ``virtually indistinguishable,'' and 
``sexually explicit conduct,'' this affirmative defense strikes 
an appropriate balance between the Government's right to police 
child pornography and the individual's right to deal in this 
material.
            iii. Clarifying Scienter
    In establishing a violation of 18 U.S.C. Sec. 2252A that 
relies upon the new definition of ``identifiable minor'' 
contained in Sec. 2256(9)(B), the Government is not required to 
prove in its case-in-chief that the computer generated visual 
depiction is that of a real minor. Rather, the Government need 
only prove: (1) that an ordinary person viewing the depiction 
would conclude that the depiction is of an actual minor; and 
(2) that the image depicts ``sexually explicit conduct'' as 
defined in Sec. 2256(2)(B).\3\ Under S. 151, it is an 
affirmative defense that the subject depicted was not, in fact, 
a real minor.
---------------------------------------------------------------------------
    \3\ Of course, Government must also establish certain non-content 
elements, such as the specified link to commerce, and the fact that the 
image is a computer image, a computer-generated image, or a digital 
image--i.e., an image that was found on a computer, related media, or 
in digital format or that was produced, altered, distributed or 
received using a computer, related media or digital technology.
---------------------------------------------------------------------------
    The scienter required to establish the offense extends to 
the nature of the contents of the image. Cf. United States v. 
X-Citement Video, Inc., 513 U.S. 64, 77-78 (1994). It is not 
necessary to show that the defendant knew or subjectively 
believed that the visual depiction was that of a real minor. 
Instead, the scienter required is only that: (1) the defendant 
knowingly transported, shipped, received, distributed or 
reproduced a visual depiction; and (2) the defendant was aware 
of the contents of the image. To meet this latter requirement, 
it is sufficient to show that the defendant was generally aware 
of the sexually explicit nature of the visual depiction and the 
life-like quality of the image, that is, those features that 
would cause a reasonable person viewing the visual depiction to 
conclude it depicted a real minor. In no event is the 
Government required to disprove the possibility that the 
defendant, although generally aware of the life-like nature of 
the image, subjectively believed that the image was virtual. To 
the extent that there is any validity to the ruling in United 
States v. Reilly, 01 Cr. 1114 (RPP), 2002 WL 31307170 (S.D.N.Y. 
Oct. 15, 2002) (after Free Speech Coalition, motion to withdraw 
guilty plea granted; court held that the government must prove 
beyond a reasonable doubt that the defendant knew that the 
images depicted real children), which does not square with the 
language and purpose of the child pornography laws, S. 151 is 
intended to reject that interpretation. Indeed, such an 
interpretation creates an almost insuperable bar to 
prosecution. Because a false claim that the defendant thought 
the image was virtual is so easy to make, yet so difficult to 
disprove, such an exacting scienter requirement would 
effectively legalize child pornography for everyone but the 
original producers.
    The new affirmative defense provision permits a defendant 
to escape criminal liability by showing that the material did 
not in fact involve the use of children. A defendant will also 
avoid conviction if the Government fails to prove that the 
objective nature of the image is such that a reasonable person 
would believe that it was a real child. A defendant will also 
escape conviction if the Government fails to prove that he was 
familiar with the contents of the image. But a defendant cannot 
escape criminal liability merely by contending that he did not 
know with certainty that it was a minor, that he had a 
subjective belief that the image was not in fact a minor or 
that he did not think that a reasonable person would believe it 
was a minor.
            iv. Record keeping requirements
    Under section 2257, producers are required to verify the 
name and age of every performer depicted in sexually explicit 
materials and to affix a label to the material that indicates 
where these records are located. See American Library 
Association v. Reno, 33 F.3d 78 (D.C. Cir. 1994) (affirming 
constitutionality of this provision). S. 151 extends these 
record keeping requirements to computer generated and digital 
images. By expanding this provision to cover the most common 
medium in which child pornography is produced for distribution, 
S. 151 is intended to protect children by deterring the 
production of child pornography. This provision also is 
intended to protect the legitimate possession or distribution 
of sexually explicit materials. Indeed, section 2257's labeling 
requirement provides a significant benefit to those who only 
wish to possess or distribute pornography that depicts only 
youthful-looking adults or virtual children. By inspecting the 
label affixed to a sexually explicit depiction of apparent 
children, individuals know precisely what records will show 
that no actual minors are being shown.\4\ Conversely, 
individuals desiring to possess or distribute legitimate 
pornography will know to be especially cautious when no label 
is affixed to a sexually explicit depiction of children.\5\
---------------------------------------------------------------------------
    \4\ Such a small label could be easily placed, of course, on a 
discrete portion of the computer image.
    \5\ A label also would assist in the preparation of the affirmative 
defense provided by S. 151. But the mere existence of such a label 
would not be a valid defense to prosecution. As explained above, a 
subjective belief that the image is not a minor, whether based on a 
label or otherwise, does not defeat scienter. A contrary result would 
engender rampant false labeling and thus effectively could lead to the 
de facto legalization of child pornography for all except the original 
producers.
---------------------------------------------------------------------------
            v. Pandering, solicitation, obscenity and the illicit use 
                    of sexually explicit materials
    S. 151 creates three new offenses designed to help assure 
the vigorous prosecution of pornography that involves children. 
One prohibits the pandering or solicitation of child 
pornography; another creates a separate offense for obscene 
sexually explicit depictions of children; and the third bars 
the use of sexually explicit materials of real or apparent 
minors for the purpose of persuading a minor to perform an 
illegal act.
    The internet has provided a ready forum for those who wish 
to traffic in child pornography. To help check this rapidly 
growing market, S. 151 creates a new offense, to be codified at 
18 U.S.C. Sec. 2252A(3)(B), that criminalizes offers to buy, 
sell or trade anything that is purported to depict actual or 
obscene child pornography. The Government further must prove 
that the defendant specifically believed (as a buyer), or 
intended to cause another to believe (as a seller), that the 
proffered material depicted either: (1) actual children engaged 
in sexually explicit conduct; or (2) sexually explicit conduct 
involving minors that was obscene. This provision has been 
written narrowly in order to capture only those individuals who 
are seeking to obtain illicit child pornography, or those 
individuals who are attempting to profit from the real or 
purported sale of illicit child pornography. This section 
should have no effect on any category of protected speech.\6\ 
Indeed, the first category of prohibited transactions involves 
a class of speech (``an obscene visual depiction of a minor 
engaged in sexually explicit conduct'') that may be proscribed 
under Miller v. California, 413 U.S. 15 (1973), and the second 
category defines another class (``a visual depiction of an 
actual minor engaged in sexually explicit conduct'') that may 
be proscribed under New York v. Ferber, 458 U.S. 747 (1982).
---------------------------------------------------------------------------
    \6\ Senators Leahy, Biden and Feingold are mistaken to suppose that 
this provision would outlaw films like Traffic, Romeo and Juliet and 
American Beauty. See Additional Views at C(3). The producers of war 
films such as Saving Private Ryan and Black Hawk Down certainly do not 
intend for viewers to believe that their movies depict real people who 
are actually being killed (nor could any reasonable viewer believe so). 
Likewise, the producers of movies like American Beauty and Traffic do 
not intend for viewers to believe that real children are actually 
engaging in sexual activity. In no way could such movie producers 
satisfy the specific intent required by this provision.
---------------------------------------------------------------------------
    S. 151 also creates a new obscenity section, to be codified 
at 18 U.S.C. Sec. 2252B, that applies to sexually explicit 
depictions of minors.\7\ It contains two prongs. The first 
criminalizes any obscene depiction of a minor engaged in a 
broad variety of sexually explicit conduct. The second is a 
focused and careful attempt to define a subcategory of 
``hardcore'' child pornography that is per se obscene. Not only 
is this subcategory limited to the most graphic acts of 
sexually explicit conduct involving real or apparent minors, 
but there also is a requirement that the depiction lack 
``serious literary, artistic, political, or scientific value.''
---------------------------------------------------------------------------
    \7\ The Committee finds that prosecutions under this new obscenity 
provision will not meet the government's compelling interest in 
combating child pornography and preventing harm to children. Indeed, 
the inadequacy of obscenity laws in preventing the actual abuse of 
children was highlighted in 1982 when the Supreme Court decided Ferber. 
That case involved lewd films of young boys masturbating. 458 U.S. at 
752. A jury nonetheless acquitted the defendant of all obscenity 
charges. Id.
---------------------------------------------------------------------------
    Finally, S. 151 criminalizes the use of child pornography 
to persuade a minor to participate in an illegal act. This 
provision is to be codified at 18 U.S.C. Sec. 2252A(a)(6). This 
new offense will help to address a problem that has long 
existed: the use of sexually explicit materials by pedophiles 
to persuade minors to participate in sexual activities. While 
this provision is directed primarily to capture sexual 
activity, its scope is intentionally broader. By its express 
terms, the provision prohibits the use of child pornography for 
inducing a minor to participate ``in any'' illegal activity.

E. Other child protection measures

    S. 151 makes a number of additional changes to existing law 
that do not warrant extended discussion here, including 
provisions to shield the identity of children depicted in child 
pornography, to assign more prosecutors to focus on child 
pornography offenses, and to provide a civil cause of action 
for those aggrieved by child pornography. Each of these is 
detailed below in the section-by-section analysis, infra at 
Sec. V.

F. Additional views of Senators Leahy, Biden and Feingold

    Every member of the Judiciary Committee was invited to 
submit comments to this Report. Senators Leahy, Biden and 
Feingold have submitted their additional views, which are 
attached hereto. These views reflect their understanding of S. 
151, as well as their concern that some of its provisions may 
be unconstitutional. All of these issues were debated by 
members thoroughly during the drafting of S. 2520 and S. 151--a 
process that spanned some ten months and produced more than a 
dozen substantive drafts. Their understanding of certain 
provisions in S. 151, as well as their constitutional concerns, 
did not command the support of the Committee. \8\
---------------------------------------------------------------------------
    \8\ These Senators, for example, make several references to ``the 
Administration'' in their Additional Views, and at times assigns to it 
a dominant role in these proceedings. See, e.g., Additional Views at 
Sec. C(4)(b) (``the Administration rejected that proposal''). These are 
curious charges. Chairman Hatch and the other members of the Judiciary 
Committee made every substantive and procedural decision regarding S. 
151. In doing so, the Committee solicited and gave due regard to the 
views of all interested groups, including the Administration. These 
Senators also question--for the first time ever--the basis for certain 
findings. Id. at Sec. C(4)(a). As set forth above, each finding is 
amply supported by the Record as developed through reliable information 
obtained by the Senate Judiciary Committee, including hearings held by 
the Senate Judiciary Committee in 1996 and 2002, and before the House 
Judiciary Committee in 2002. Finally, it is worth noting that Senators 
Biden and Feingold never raised any objection to any portion of either 
S. 2520 or S. 151 during its consideration by the Committee.
---------------------------------------------------------------------------

                       IV. Vote of the Committee

    The Senate Committee on the Judiciary, with a quorum 
present, met in executive session on Thursday, January 30, 
2003, to consider the ``PROTECT Act of 2003.'' The Committee 
considered S. 151 and approved the bill, as amended, by voice 
vote, with no objection noted,\9\ and ordered the bill to be 
reported favorably to the Senate, with a recommendation that 
the bill do pass.
---------------------------------------------------------------------------
    \9\ As noted elsewhere in this Report, Senator Leahy noted his 
objection to certain amendments, but approved S. 151 as amended. No 
other Senator noted any objection to any provision of S. 151.
---------------------------------------------------------------------------

                     V. Section-by-Section Analysis

    Section 1: Short Title. This section establishes the name 
of the bill as the ``Prosecutorial Remedies and Tools Against 
the Exploitation of Children Today Act of 2003,'' or the 
``PROTECT Act.''
    Section 2: Findings. This section details some of the 
salient findings made by Congress as relevant to the PROTECT 
Act.
    Section 3: Certain Activities Relating to Material 
Constituting or Containing Child Pornography. This section, to 
be codified at 18 U.S.C. Sec. 2252A(a)(3)(B), prohibits the 
``advertis[ing], promot[ing], present[ing], distribut[ing], or 
solicit[ing]'' real or purported materials that the actor 
believes, or intends to cause another to believe, contain 
depictions of actual or obscene child pornography.\10\ The crux 
of what this provision bans is the offer to transact in this 
unprotected material, coupled with proof of the offender's 
specific intent. Thus, for example, this provision prohibits an 
individual from offering to distribute anything that he 
specifically intends to cause a recipient to believe would be 
actual or obscene child pornography. It likewise prohibits an 
individual from soliciting what he believes to be actual or 
obscene child pornography. The provision makes clear that no 
actual materials need exist; the government establishes a 
violation with proof of the communication and requisite 
specific intent. Indeed, even fraudulent offers to buy or sell 
unprotected child pornography help to sustain the illegal 
market for this material.
---------------------------------------------------------------------------
    \10\ Senator Leahy has objected to two portions of this provision: 
(1) the inclusion of ``or purported material''; and (2) the inclusion 
of ``a visual depiction of an actual minor engaging in sexually 
explicit conduct.'' Senator Hatch offered the first phrase in an 
amendment to S. 2520 during an executive session of the Judiciary 
Committee on November 14, 2002. The Committee approved this amendment, 
as well as S. 2520 as amended, and this language was incorporated in 
the version of S. 151 that was introduced in the 108th Congress. 
Senator Hatch offered the second phrase in an amendment to S. 151 
during an executive session of the Judiciary Committee on January 30, 
2003. The Committee approved that amendment, too, as well as S. 151 as 
amended.
---------------------------------------------------------------------------
    Section three further criminalizes the act of using any 
type of real or apparent child pornography to induce a child to 
commit a crime. This provision, to be codified at 18 U.S.C. 
Sec. 2252A(a)(6), targets harmful conduct, and not mere 
possession of such materials, some of which may be protected 
under the First Amendment. Finally, section three creates a new 
and comprehensive affirmative defense for anyone charged with 
distributing or possessing child pornography. With this new 
affirmative defense, to be codified at 18 U.S.C. Sec. 2252A(c), 
an accused can completely escape liability by showing that the 
sexually explicit depictions in question were produced without 
using, directly or indirectly, any actual minors. The provision 
also makes clear that the defendant must provide timely and 
specific notice of his intent to raise either the youthful-
looking adult or virtual porn defense.
    Section 4: Admissibility of Evidence. This section, to be 
codified at 18 U.S.C. Sec. 2252A(e), protects the privacy of 
minors depicted in child pornography by permitting the 
government to seek an order that shields non-physical 
identifying information from public scrutiny. Of course, such 
information may be a critical component of the government's 
proof at trial; there may be evidence, for example, that the 
defendant stored the sexually explicit depiction in a folder 
labeled ``Jennifer--Age 12.'' For this reason, this provision 
does not require the government to seek the exclusion of such 
information in every instance. When the government moves to do 
so, however, this provision creates a strong presumption that 
the privacy of the minor shall be protected. In that event, the 
government also is entitled to obtain a jury instruction that 
the absence of this information shall not be used to infer that 
the depictions are not, in fact, actual minors.
    Section 5: Definitions. This section, in conjunction with 
the affirmative defense provision created in section 3, 
attempts to cure some of the problems of the post-Free Speech 
Coalition virtual porn defense in a narrowly tailored way. It 
does so principally in three ways. First, it adds a new 
definition of an ``identifiable minor'' that includes computer 
or digital images that are ``virtually indistinguishable'' 
fromimages of an actual minor.\11\ Second, it narrowly defines 
``virtually indistinguishable'' to include only life-like images. 
Finally, it adds a new, narrower definition of ``sexually explicit 
conduct'' that applies only to prosecutions brought under the new 
definition of ``identifiable minor.''
---------------------------------------------------------------------------
    \11\ Senator Hatch offered this definition as an amendment to S. 
2520 during an executive session of the Judiciary Committee on November 
14, 2002. The Committee approved this amendment, as well as S. 2520 as 
amended; Senator Leahy noted his objection to this definition of 
``identifiable minor.'' This language was incorporated in the version 
of S. 151 that was introduced in the 108th Congress, and subsequently 
approved by the Judiciary Committee.
---------------------------------------------------------------------------
    Section 6: Obscene Visual Representations of the Sexual 
Abuse of Children. This section creates a new offense, to be 
codified at 18 U.S.C. Sec. 2252B, that criminalizes obscene 
sexually explicit depictions of minors. It prohibits any 
obscene depictions of minors engaged in any form of sexually 
explicit conduct. It further prohibits a narrow category of 
``hardcore'' pornography involving real or apparent minors, 
where such depictions lack literary, artistic, political or 
scientific value. This new offense is subject to the penalties 
applicable to child pornography, not the lower penalties that 
apply to obscenity, and S. 151 therefore contains a directive 
to the U.S. Sentencing Commission requiring it to ensure that 
the U.S. Sentencing Guidelines are consistent with this 
fact.\12\
---------------------------------------------------------------------------
    \12\ Senator Hatch offered this directive to the U.S. Sentencing 
Commission as an amendment to S. 151 during an executive session of the 
Judiciary Committee on January 30, 2003. Senator Leahy noted his 
objection to this provision. The Committee approved this amendment, as 
well as S. 151 as amended.
---------------------------------------------------------------------------
    Section 7: Recordkeeping Requirements. This section expands 
the scope of materials subject to the recordkeeping 
requirements of section 2257. Specifically, ``computer 
generated image[s], digital image[s], or picture[s]'' are added 
to the existing categories of sexually explicit materials for 
which records must be created and maintained. In making these 
changes, section 2257 is designed to include the most common 
medium for distributing, exchanging or obtaining child 
pornography over the internet. This section further increases 
the existing penalties for violations of section 2257.
    Section 8: Service Provider Reporting of Child Pornography 
and Related Information. This section makes several changes to 
the existing ``Cyber Tip Line'' system maintained by the 
National Center for Missing and Exploited Children that 
receives reports of child pornography from electronic 
communication and remote computing service providers. First, it 
adds the new obscene child pornography section created by S. 
151, which is to be codified at 18 U.S.C. Sec. 2252B, to the 
list of offenses that must be reported. Second, it adds the 
phrase ``or pursuant to'' to the existing civil liability 
provision to make abundantly clear that any good faith effort 
to file a report under 42 U.S.C. Sec. 13032 provide an absolute 
immunity from civil liability. Finally, the provision 
authorizes NCMEC to forward Cyber Tip Line reports to state and 
local authorities for the purpose of enforcing state criminal 
law.
    Section 9: Contents Disclosure of Stored Communications. 
This section permits electronic communication and remote 
computing service providers to disclose reports of child 
pornography to the National Center for Missing and Exploited 
Children, in connection with a report that is submitted 
pursuant to 42 U.S.C. Sec. 13032. Specifically, this provision 
allows such providers to disclose not only the substance of the 
communication that pertains to the report of child pornography, 
but also any related customer information.
    Section 10: Extraterritorial Production of Child 
Pornography for Distribution in the United States. This section 
amends current law by providing the Government with the 
authority to prosecute foreign producers of child pornography 
if that material is transported, or intended to be transported, 
to the United States.Persons and entities who target, exploit, 
profit from or help to perpetuate the market for child pornography in 
the United States are fairly subject to our system of laws and 
penalties.
    Section 11: Civil Remedies. This section creates a new 
civil cause of action against producers, distributors and 
possessors of child pornography. Persons aggrieved by such 
conduct may bring suit seeking appropriate relief, including 
punitive damages and reasonable attorneys' fees. Of course, not 
every person will be entitled to bring such a lawsuit, but the 
provision is intended to authorize a broad variety of 
plaintiffs to file these lawsuits subject only to 
constitutional standing limitations.
    Section 12: Enhanced Penalties for Recidivists. This 
section makes persons who have been convicted of any obscenity 
offense contained within Chapter 71 of Title 18, United States 
Code, eligible for the enhanced penalties provided for child 
pornography offenders.
    Section 13: Sentencing Enhancements for Interstate Travel 
to Engage in Sexual Act with a Juvenile. This section directs 
the United States Sentencing Commission to review the existing 
penalties for persons who travel across state lines to engage 
in sexual activity with a minor. The Committee considers the 
current penalty structure for this offense in the United States 
Sentencing Guidelines to be too lenient. This should be clear 
from the fact that such offenders are punished less harshly 
than offenders who simply possess child pornography.
    Section 14: Miscellaneous Provisions. This section directs 
the Department of Justice to appoint twenty-five more attorneys 
who are dedicated to the enforcement of child pornography laws, 
and authorizes the appropriations of funds necessary to fulfil 
this mission. It also directs the Department of Justice to 
prepare periodic reports to Congress on the enforcement of the 
federal child pornography laws, as well as the technology being 
employed by the producers and distributors of child 
pornography. Finally, the section requires the U.S. Sentencing 
Commission to carefully review and consider the penalties 
needed to deter and punish the new offenses created by S. 151 
in 18 U.S.C. Sec. 2252A.
    Section 15: Authorization of Interception of Communications 
in the Investigation of Sexual Crimes Against Children. This 
section adds additional crimes against children into 18 U.S.C. 
Sec. 2516(1)(c). By doing so, this provision amends current law 
by allowing the government to seek wiretaps in investigations 
for, inter alia, the sexual trafficking of children, the 
selling or buying of children, child pornography, child 
obscenity, the production of sexually explicit depictions of 
minors for importation into the United States and the sexual 
exploitation of children.\13\
---------------------------------------------------------------------------
    \13\ Senator Hatch offered this section as an amendment to S. 151 
during an executive session of the Judiciary Committee on January 30, 
2003. Senator Leahy noted his objection to this section. The Committee 
approved this amendment, as well as S. 151 as amended.
---------------------------------------------------------------------------
    Section 16: Investigative Authority Relating to Child 
Pornography. This section amends 18 U.S.C. 
Sec. 3486(a)(1)(C)(i) by inserting a reference to section 
2703(c)(2). The effect of this provision is to update the type 
of information the government can obtain from electronic 
service providers with an administrative subpoena in 
investigations involving, inter alia, the sexual exploitation 
of children. Specifically, this provision permits the 
government to obtain two more types of information then current 
law permits: (1) the means and source of payment for the 
service; and (2) the telephone or instrument number or other 
subscriber number or identity, including any temporarily 
assigned network address. This provision, moreover, assures 
that there is no arbitrary distinction between the type of 
information that the government may obtain from electronic 
service providers under sections 2703 and 3486.\14\
---------------------------------------------------------------------------
    \14\ Senator Hatch offered this section as an amendment to S. 151 
during an executive session of the Judiciary Committee on January 30, 
2003. Senator Leahy noted his objection to this section. The Committee 
approved this amendment, as well as S. 151 as amended.
---------------------------------------------------------------------------
    Section 17: Severability. This section makes explicit that 
if any provision of the bill is held to be unconstitutional, 
the remainder of the bill shall not be affected.

                           VI. Cost Estimate

    The cost estimate from the Congressional Budget Office 
requested on S. 151 has not yet been received. Due to time 
constraints, the CBO letter will be printed in the 
Congressional Record.

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 151 will not have significant 
regulatory impact.

      VIII. ADDITIONAL VIEWS OF SENATORS LEAHY, BIDEN AND FEINGOLD

    The Hatch-Leahy PROTECT Act of 2003 will provide important 
new tools to protect our nation's children from exploitation by 
child pornographers. Although this bill is not perfect, it is a 
good faith effort to deal with the scourge of child pornography 
within constitutional limits. Congress failed to do that in the 
1996 Child Pornography Protection Act (``CPPA''), much of which 
the Supreme Court struck down last year. See Ashcroft v. Free 
Speech Coalition, 122 S. Ct. 1389 (2002). We must not make the 
same mistake again. The last thing we want to do is to create 
years of legal limbo for our nation's children, after which the 
courts strike down yet another law as unconstitutional.
    Everyone in the Senate agrees that we should do all we can 
to protect our children from being victimized by child 
pornography. That would be an easy debate and vote. The more 
difficult thing is to write a law that will both do that and 
will produce convictions that stick. In 1996, when we passed 
the CPPA, many warned us that certain provisions of that Act 
violated the First Amendment. The Supreme Court's decision in 
Free Speech Coalition has proven them correct.
    It is important that we respond to the Supreme Court's 
decision. It is just as important, however, that we avoid 
repeating our past mistakes. We must do all we can to end the 
victimization of children by child pornographers, but we must 
also ensure that any new law will withstand First Amendment 
scrutiny. Our children deserve more than a press conference on 
this issue. They deserve a law that will last rather than be 
stricken from the law books.
    Senator Leahy previously expressed the hope that we could 
report and pass a bill that was identical to the measure that 
passed the Judiciary Committee and the Senate unanimously in 
the 107th Congress. Instead, having been forced to repeat the 
legislative process again this year, we are considering a 
modified bill which, while improved in some respects, is more 
problematic in others.

                  A. KEY PROVISIONS OF THE PROTECT ACT

1. Pandering and the illicit use of sexually explicit materials
    Section 3 of the PROTECT Act creates two new crimes aimed 
at people who distribute child pornography and those who use 
such material to entice children to do illegal acts. Each of 
these new crimes carries a 15-year maximum prison sentence for 
a first offense and double that term for repeat offenders.
    First, the bill criminalizes the pandering of child 
pornography, creating a new crime to respond to the Supreme 
Court's recent ruling striking down the CPPA's definition of 
pandering. This provision is narrower than the old 
``pandering'' definition in at least one way that responds to a 
specific Court criticism. The new crime applies only to the 
people who actually pander the child pornography or solicit it, 
not to all those who possess the material ``downstream,'' and 
it requires the government to demonstrate that the defendant 
acted with the specific intent that the material is believed to 
be child pornography. The bill also contains a directive to the 
Sentencing Commission that asks it to distinguish between those 
who pander or distribute such material and those who only 
``solicit'' the material. As with narcotics cases, distributors 
and producers are more culpable than users and should be 
punished more harshly for maximum deterrent effect.
    We would have liked for the pandering provision to be 
crafted more narrowly so that ``purported'' material was not 
included and so that all pandering prosecutions would be linked 
to the ``obscenity'' doctrine. That is the way that Senator 
Hatch and Senator Leahy originally wrote and introduced this 
provision in the last Congress. Unfortunately, the amendment 
process has resulted in some expansions to this once non-
controversial provision that may subject it to a constitutional 
challenge. Thus, while it responds to some specific concerns 
raised by the Supreme Court, there are serious constitutional 
issues that the courts will have to consider with respect to 
this provision. Those issues will be discussed later.
    Second, the bill creates a new crime that Senator Leahy 
proposed to take direct aim at one of the chief evils of child 
pornography: namely, its use by sexual predators to entice 
minors either to engage in sexual activity or the production of 
more child pornography. This was one of the compelling 
arguments made by the government before the Supreme Court in 
support of the CPPA, but the Court rejected that argument as an 
insufficient basis to ban the production, distribution or 
possession of ``virtual'' child pornography. This bill 
addresses that same harm in a more targeted and narrowly 
tailored manner. It creates a new felony, which applies to both 
actual and virtual child pornography, for people who use such 
material to entice minors to participate in illegal activity. 
This will provide prosecutors a potent new tool to put away 
those who prey upon children using such pornography--whether 
the child pornography is virtual or not.
2. Improved affirmative defense
    Next, this bill attempts to revamp the existing affirmative 
defense in child pornography cases both in response to 
criticisms of the Supreme Court and so that the defense does 
not erect unfair hurdles to the prosecution of cases involving 
real children. Responding directly to criticisms of the Court, 
the new affirmative defense applies equally to those who are 
charged with possessing child pornography and to those who 
actually produce it, a change from current law. It also allows, 
again responding to specific Supreme Court criticisms, for a 
defense that no actual children were used in the production of 
the child pornography--i.e. that it was made using computers. 
At the same time, this provision protects prosecutors from 
unfair surprise in the use of this affirmative defense by 
requiring defendants to give advance notice of their intent to 
assert it, just as defendants are currently required to give 
notice if they plan to assert an alibi or insanity defense. As 
a former prosecutor, Senator Leahy suggested this provision 
because it affects the real way that these important trials are 
conducted and our collective experience in this area confirms 
this notion. With this provision, the government will have 
sufficient notice to marshal the expert testimony that may be 
needed to rebut this ``virtual porn'' defense in cases where 
real children were victimized.
    The improved affirmative defense measure also provides 
important support for the constitutionality of much of this 
bill after the Free Speech Coalition decision. Both the 
majority opinion and Justice Thomas's concurrence suggest that 
a more complete affirmative defense could save a statute from 
First Amendment challenge. This is one reason for making the 
defense applicable to all non-obscene child pornography, as 
defined in 18 U.S.C. Sec. 2256. In the bill's current form, 
however, the affirmative defense is not available in one of the 
new proposed classes of virtual child pornography, to be 
codified at 18 U.S.C. Sec. 2252B(a)(2) and (b)(2). This 
omission may render these new sections unconstitutional under 
the First Amendment. We hope that, as the legislative process 
continues, we can work to address this and other potential 
constitutional infirmities in the bill. We do not want to be 
here again in five years, after yet another Supreme Court 
decision striking this law down.

3. Recordkeeping requirements

    The bill also provides needed assistance to prosecutors in 
rebutting the virtual porn defense by removing a restriction on 
the use of records of performers portrayed in certain sexually 
explicit conduct that are required to be maintained under 18 
U.S.C. Sec. 2257, and expanding such records to cover computer 
images. These records, which will be helpful in proving that 
the material in question is not ``virtual'' child pornography, 
may be used in federal child pornography and obscenity 
prosecutions under this legislation. The purpose of this 
provision is to protect real children from exploitation. It is 
important that prosecutors have access to this information in 
both child pornography and obscenity prosecutions, since the 
Supreme Court's recent decision has had the effect of narrowing 
the child pornography laws, making it more likely that the 
general obscenity statutes will be important tools in 
protecting children from exploitation. In addition, the bill 
raises the penalties for not keeping accurate records, further 
deterring the exploitation of minors and enhancing the 
reliability of the records.

4. Definitional provisions

    Next, the Hatch-Leahy bill contains several provisions 
altering the definition of ``child pornography'' in response to 
the Free Speech Coalition case. One approach would have been 
simply to add an ``obscenity'' requirement to the child 
pornography definitions. Outlawing all obscene child 
pornography--real and virtual; minor and ``youthful-adult''; 
simulated and real--would clearly pass constitutional muster 
because obscene speech enjoys no protection at all. Under the 
Miller obscenity test, such material (1) ``appeals to the 
prurient interest,'' (2) is utterly ``offensive'' in any 
``community,'' and (3) has absolutely no serious ``literary, 
artistic or scientific value.'' See Miller v. California, 413 
U.S. 15 (1973).
    Some new provisions of this bill do take this ``obscenity'' 
approach, like the new section 2252B(b)(1) and, to a lesser 
extent, the new section 2252B(b)(2), which Senator Leahy 
crafted working with Senator Hatch. These provisions will serve 
as important and potent tools in the fight against child 
pornography and we commend Chairman Hatch for working in a 
bipartisan fashion to develop them. Other provisions, however, 
take a different approach. For example, the CPPA's definition 
of ``identifiable minor'' has been modified in the bill to 
include a prong for persons who are ``virtually 
indistinguishable from an actual minor.'' This adopts language 
from Justice O'Connor's opinion in the Free Speech Coalition 
case and is defensible, but we predict that it will be the 
center of much constitutional debate. As we will explain in 
more detail later--and as discussed in Attachments A and B to 
these additional views--while there may be good faith arguments 
in support of those provisions, these new definitional 
provisions risk crossing the constitutional line.

5. Increased penalties

    This bill also contains a variety of other measures 
designed to increase jail sentences in cases where children are 
victimized by sexual predators. First, it enhances penalties 
for repeat offenders of child sex offenses by expanding the 
predicate crimes that trigger tough, mandatory minimum 
sentences. Second, the bill requires the U.S. Sentencing 
Commission to address a disturbing disparity in the current 
Sentencing Guidelines: the current sentences for persons who 
actually travel across state lines to have sex with a child are 
not as high as the sentences for those who simply possess child 
pornography. The Commission needs to correct this oversight 
immediately, so that prosecutors can take these dangerous 
sexual predators off the street. These are all strong measures 
designed to protect children and increase prison sentences for 
child molesters and those who otherwise exploit children.

6. Child victim shield provision

    The Hatch-Leahy PROTECT Act also has several provisions 
designed to protect the children who are victims in these 
horrible cases. Privacy of the children must be paramount. It 
is important that they not be victimized yet again in the 
criminal process. This bill provides for the first time ever an 
explicit shield law that prohibits the name or other non-
physical identifying information of the child victim (other 
than the age or approximate age) from being admitted at any 
child pornography trial. It is also intended that judges can 
and will take appropriate steps to ensure that such information 
as the child's name, address or other identifying information 
not be publicly disclosed during the pretrial phase of the case 
or at sentencing. The bill also contains a provision requiring 
the judge to instruct the jury, upon request of the government, 
that no inference should be drawn against the United States 
because of information inadmissible under the new shield law.

7. Reporting provisions

    The Hatch-Leahy PROTECT Act also amends certain reporting 
provisions governing child pornography. Specifically, it allows 
federal authorities to report information they receive from the 
National Center for Missing and Exploited Children (NCMEC) to 
state and local police without a court order. In addition, the 
bill removes the restrictions under the 
ElectronicCommunications Privacy Act (ECPA), 18 U.S.C. Sec. 2701 et 
seq., for reporting the contents of, and information pertaining to, a 
subscriber of stored electronic communications to the NCMEC when a 
mandatory child porn report is filed with the NCMEC pursuant to 42 
U.S.C. Sec. 13032.
    While this change may invite rogue federal, state or local 
agents to try to circumvent all subpoena and court order 
requirements under ECPA and allow them to obtain subscriber 
emails and information by triggering the initial report to the 
NCMEC themselves, it should be well understood that this is not 
the intention behind this provision. These important safeguards 
are not being altered in any way, and a deliberate use of the 
tip line by a government agent to circumvent the well 
established statutory requirements of these provisions would be 
a serious violation of the law. Nevertheless, we should still 
consider further clarification to guard against the possibility 
that government officials will go on fishing expeditions for 
stored electronic communications under the rubric of 
investigating child pornography, thus subverting the safeguards 
in ECPA.
    As Senator Leahy made clear when this bill was introduced, 
we are all disappointed in the Department of Justice 
information sharing regulations related to the NCMEC tip line. 
According to a recent Government Accounting Office (GAO) 
report, due to outdated turf mentalities, the Attorney 
General's regulations exclude both the U.S. Secret Service and 
the U.S. Postal Inspection Service from direct access to 
important tip line information. That is totally unacceptable, 
especially in the post 9-11 world where the importance of 
information sharing is greater than ever. How can the 
Administration justify support of this Hatch-Leahy bill, which 
allows state and local law enforcement officers such access, 
when they are simultaneously refusing to allow other federal 
law enforcement agencies access to the same information? 
Senator Leahy made this request in his statement when this bill 
was introduced, but once more we urge the Attorney General to 
end this unseemly turf battle and to issue regulations allowing 
both the Secret Service and the Postal Inspection Service, who 
both perform valuable work in investigating these cases, to 
have access to this important information so that they can 
better protect our nation's children.

8. Extraterritorial jurisdiction

    The Hatch-Leahy bill also provides for extraterritorial 
jurisdiction where a defendant induces a child to engage in 
sexually explicit conduct outside the United States for the 
purposes of producing child pornography that they intend to 
transport to the United States. The provision is crafted to 
require the intent of actual transport of the material into the 
United States, unlike the House bill from the last Congress, 
which criminalized even the intent to make such material 
``accessible.'' Under that overly broad wording, any material 
posted on a web site internationally could be covered, whether 
or not it was ever intended that the material be downloaded in 
the United States. Under the bill we consider today, however, 
proof of a specific intent to send such material to the United 
States is required.

9. Private right of action

    Finally, the bill provides a new private right of action 
for the victims of child pornography. This provision has teeth, 
including injunctive relief and punitive damages that will help 
to put those who produce child pornography out of business for 
good. We commend Senator Hatch for his leadership on this 
provision and his recognition that such punitive damages 
provisions are important means of deterring misconduct. These 
provisions are important, practical tools to put child 
pornographers out of business for good and in jail where they 
belong.

      B. JOINT HATCH-LEAHY IMPROVEMENTS IN THE JUDICIARY COMMITTEE

    As we mentioned previously, the PROTECT Act is a good faith 
effort to tackle the child pornography problem, and Senator 
Leahy has supported its passage from the outset. We are also 
glad that because of our bipartisan cooperation, Senators Hatch 
and Leahy were able to offer a joint amendment in Committee 
that was supported by Members on both sides of the aisle and 
strengthened the bill further against constitutional attack. 
Here are some of the improvements that were jointly made to the 
bill as introduced:
     The Hatch-Leahy amendment created a new specific 
intent requirement in the pandering crime. The provision is now 
better focused on the true wrongdoers and requires that the 
government prove beyond a reasonable doubt that the defendant 
actually intended others to believe that the material in 
question is obscene child pornography. This is a positive step.
     The Hatch-Leahy amendment narrowed the definition 
of ``sexually explicit conduct'' for prosecutions of computer 
created child pornography. Although we continue to have serious 
reservations about the constitutionality of prosecuting cases 
involving such ``virtual'' child pornography after the Supreme 
Court's decision in Free Speech Coalition, narrowing the 
definition of the conduct covered provides another argument 
that the provision is not as overbroad as the one in the CPPA. 
Senator Leahy had also proposed a change that contained an even 
better definition, in order to focus the provision on true 
``hard core'' child pornography, and we hope such a change will 
be considered as the process continues.
     The Hatch-Leahy amendment saved the existing 
``anti-morphing'' provision from a fresh constitutional 
challenge by excluding 100 percent virtual child pornography 
from its scope. That morphing provision was one of the few 
measures from the CPPA that the Supreme Court did not strike 
down last year. We are pleased that this bill avoids placing 
this measure in constitutional peril.
     The Hatch-Leahy amendment refined the definition 
of virtual child pornography in the provision that Senators 
Hatch and Leahy worked together to craft last year, which will 
be new 18 U.S.C. Sec. 2252B. This provision relies to a large 
extent on obscenity doctrine, and thus is more rooted in the 
Constitution than other parts of the bill. We were pleased 
thatthe Hatch-Leahy amendment included in new sections 2252B(a)(2) and 
(b)(2) a definition that the image be ``graphic''--that is, one where 
the genitalia are actually shown during the sex act--for two reasons. 
First, because the old law would have required proof of ``actual'' 
minors in cases with ``virtual'' pictures, we believe that this 
clarification will remove a potential contradiction from the new law 
which pornographers could have used to mount a defense. Second, it will 
provide another argument supporting the law's constitutionality because 
the new provision is narrowly tailored to cover only the most ``hard 
core'' child pornography. We are disappointed that we could not include 
a similar definition in the bill's other virtual child pornography 
provision, which was included at the request of the Administration. We 
hope that measure will be considered as the bill moves forward.
     The Hatch-Leahy amendment also clarified that 
digital pictures are covered by the PROTECT Act, an important 
addition in today's world of digital cameras and camcorders.
    These were important changes, and we were glad to work with 
Senator Hatch to craft and approve them.

                          C. REMAINING ISSUES

    This law is not perfect, however, and we would have liked 
to see some additional improvements to the bill.

1. Potential for law enforcement to ``tickle to tip line''

    Regarding the tip line, we would have liked to further 
clarify that law enforcement agents may not and should not 
``tickle the tip line'' to avoid the key protections of ECPA. 
This might have included clarifying 42 U.S.C. Sec. 13032, such 
that the initial tip triggering the report may not be generated 
by the government's investigative agents themselves. A tip line 
to the NCMEC is just that--a way for outsiders to report 
wrongdoing to the NCMEC and the government, not for the 
government to generate a report to itself without following 
otherwise required lawful process. It was not the intent of any 
part of this bill to alter that purpose.

2. Lack of affirmative defense for certain categories of child 
        pornography

    Regarding the affirmative defense, we would have liked to 
ensure that there is an affirmative defense for each new 
category of child pornography and for all cases where a 
defendant can prove in court that a specific, non-obscene image 
was made without using any child, but only with actual, 
identifiable adults. The Committee Report repeatedly asserts 
that the new affirmative defense created by the PROTECT Act is 
an ``absolute'' or ``complete'' affirmative defense, but in 
fact the defense is not sufficiently complete. For the new 
offenses created by new sections 2252B(a)(2) and (b)(2), the 
bill does not allow for the assertion of such an affirmative 
defense. Indeed, the defense is unavailable not only for cases 
involving so-called virtual child pornography, but also for 
cases in which a defendant can establish that a real 
identifiable adult is involved (i.e. youthful adult porn). 
While the advisability of resting so much of the constitutional 
justification for this statute upon an affirmative defense 
about which at least six members of the Supreme Court expressed 
grave reservations is dubious to begin with, making such a 
provision anything less than completely applicable needlessly 
places these otherwise sound provisions in constitutional 
peril.
    As a general matter, it is worth repeating that we could be 
avoiding these problems were we to take the simple approach of 
outlawing ``obscene'' child pornography of all types, which we 
do in one new provision that Senator Leahy suggested. That 
approach would produce a law beyond any possible challenge even 
without any affirmative defense. This approach is also 
supported by the NCMEC, which we all respect as the true expert 
in this field.
    Following is an excerpt from the NCMEC's answer to written 
questions submitted after our hearing:

          Our view is that the vast majority (99-100%) of all 
        child pornography would be found to be obscene by most 
        judges and juries, even under a standard of beyond a 
        reasonable doubt in criminal cases. Even within the 
        reasonable person under community standards model, it 
        is highly unlikely that any community would not find 
        child pornography obscene. * * *
          In the post Free Speech decision legal climate, the 
        prosecution of child pornography under an obscenity 
        approach is a reasonable strategy and sound policy.

    Thus, according to the NCMEC, the approach that is least 
likely to raise constitutional questions--using established 
obscenity law--is also an effective one. In short, the 
obscenity approach is the most narrowly tailored to prevent 
child pornography. New section 2252B adopts an obscenity 
approach, but because that is not the approach that other parts 
of the PROTECT Act uses, we recognize that the bill contains 
provisions about which some may have legitimate constitutional 
questions.
    Specifically, in addition to the provisions that we have 
already discussed, there were two amendments adopted in the 
Judiciary Committee in the last Congress and one in this 
Congress to which Senator Leahy objected that are included in 
the bill as reported this year. These amendments relate to the 
bill's pandering and ``identifiable minor'' provisions. We felt 
and still feel that these alterations from the original way 
that Senators Hatch and Leahy introduced the bill needlessly 
risk a serious constitutional challenge to the bill, and that 
the bill would be even stronger than it is now were they 
changed.

3. Expansion of pandering provision

    Although Senator Leahy worked with Senator Hatch to write 
the new pandering provision in the PROTECT Act, Senator Leahy 
did not support two of Senator Hatch's amendments extending the 
provision to cover (1) ``purported'' material, and (2) material 
not linked to obscenity.
    First, during last year's Committee markup, Senator Leahy 
objected to an amendment from Senator Hatch to include in the 
pandering provision ``purported'' material, which criminalizes 
speech even when there is no underlying material at all--
whether obscene or non-obscene, virtual or real, child or 
adult. The pandering provision is an important tool for 
prosecutors to punish true child pornographers who for some 
technical reason are beyond the reach of the normal child porn 
distribution or production statutes. It is not meant to 
federally criminalize talking dirty over the Internet or the 
telephone when the person never possesses any material at all. 
That is speech, and that goes too far.
    The original pandering provision in S. 2520 as introduced 
in last Congress was quite broad, and some argued that it 
presented constitutional problems as written, but we thought 
that prosecutors needed a strong tool, so we supported Senator 
Hatch on that provision.
    We were heartened that Professor Schauer of Harvard Law 
School, a noted First Amendment expert, testified at our 
hearing last year that he thought that the original provision 
was constitutional, although just barely. Unfortunately, 
Professor Schauer has since written to me stating that the new 
amendment to include ``purported'' material ``push[es] well 
over the constitutional edge a provision that is now up against 
the edge, but probably barely on the constitutional side of 
it.'' Senator Leahy placed his letter in the Record upon 
introduction of the bill in this Congress on January 13, 2003.
    The second amendment to the pandering provision to which 
Senator Leahy objected expanded it to cover cases not linked in 
any way to obscenity. It would allow prosecution of anyone who 
``presented'' a movie that was intended to cause another person 
to believe that it included a minor engaging in sexually 
explicit conduct, whether or not it was obscene and whether or 
not any real child was involved. Any person or movie theater 
that presented films like Traffic, Romeo and Juliet, and 
American Beauty would be guilty of a felony. The very point of 
these dramatic works is to cause a person to believe that 
something is true when in fact it is not. These were precisely 
the overbreadth concerns that led seven Supreme Court justices 
to strike down parts of the 1996 Act. We do not want to put 
child porn convictions on hold while we wait another six years 
to see if the law will survive constitutional scrutiny.
    Because these two changes endanger the entire pandering 
provision, because they are unwise, and because that section is 
already strong enough to prosecute those who peddle child 
pornography, we oppose those expansions of the provision and 
still hope that we can reconsider them.
    While the addition of a heightened scienter requirement in 
the new pandering provision is wise, it does not cure the basic 
problem with delinking pandering from the obscenity doctrine. 
The whole aim of dramatic presentation is to convince the 
viewer that what is, in fact, fiction is fact. For instance, 
adult actors are intentionally and purposefully disguised to 
look as if they are minors to sustain precisely that 
misperception. Thus, the decision to obviate the need to 
demonstrate any relation to obscenity places the 
constitutionality of the provision as a whole at risk.

4. Inclusion of 100 percent virtual child pornography in ``identifiable 
        minor'' provision

            a. Amendment of the ``identifiable minor'' provision to 
                    include virtual child pornography
    Even when Senator Leahy joined Senator Hatch in introducing 
this bill last year, he expressed concern over certain 
provisions. One such provision was the new definition of 
``identifiable minor.'' In his floor statement on introduction, 
Senator Leahy noted that this provision might ``both confuse 
the statute unnecessarily and endanger the already upheld 
`morphing' section of the CPPA.'' Senator Leahy said he was 
concerned that it ``could present both overbreadth and 
vagueness problems in a later constitutional challenge.'' 
Unfortunately, this provision remains problematic and 
susceptible to constitutional challenge.
    As the bill developed, a change to the definition of 
``identifiable minor'' expanded it to cover virtual child 
pornography--that is, 100 percent computer-generated pictures 
not involving any real children. For that reason, it presented 
additional constitutional problems similar to the 
Administration-supported House bill. Senator Leahy objected to 
this amendment when it was added to the bill in the last 
Congress in Committee, and we have serious concerns with it 
now.
    The ``identifiable minor'' definition in the PROTECT Act 
has no link to obscenity doctrine. Therefore, what potentially 
saved the original version we introduced in the 107th Congress 
was that it applied to child porn made with real ``persons.'' 
The provision was designed to strengthen the existing provision 
covering all sorts of images of real minors that are morphed or 
altered, but not something entirely made by computer, with no 
child involved.
    The change adopted in the Judiciary Committee last year and 
supported by the Administration, however, dislodged that sole 
constitutional anchor by redefining ``identifiable minor'' to 
include a new category of pornography for any ``computer 
generated image that is virtually indistinguishable from an 
actual minor.'' The new provision could be read to include 
images that never involved real children at all but were 100 
percent computer generated.
    That was not the original goal of this provision. There are 
other provisions in this bill that deal with virtual child 
pornography that we support, such as those in the new section 
2252B, which are linked to obscenity doctrine. This provision, 
however, was intended to ease theprosecutor's burden in cases 
where images of real children were cleverly altered to avoid 
prosecution. By changing the identifiable minor provision into a 
virtual porn provision, the Administration has needlessly endangered 
its constitutionality.
    In making the argument that a regulation against such 
``virtual porn'' is constitutionally permissible even after the 
Free Speech decision, the Committee Report is internally 
inconsistent and strains the legislative record. The Committee 
Report is internally inconsistent on the root causes of child 
pornography, and thus on what response is most `narrowly 
tailored' to prevent it. At one point, the Report (at part V, 
section 3) echoes the more traditional ``market'' argument, 
that child pornography is created largely to satisfy an 
existing market need fed by those who have little or nothing to 
do with its production. (``Indeed, even fraudulent offers to 
buy or sell unprotected child pornography help to sustain the 
illegal market for this material.'') Such rationales are 
offered as support for outlawing simple possession of child 
pornography as well as for the more sweeping aspects of the 
bill's new pandering offense.
    At the same time, however, in an effort to justify the 
bill's broad ban on virtual child pornography by linking that 
effect to real children, the Report (at part III, section 
C(ii)) asserts that ``child pornography results from the abuse 
of real children by sex offenders; the production of child 
pornography is a byproduct of, and not the primary reason for 
the sexual abuse of children.'' \1\ In other words, it is not 
the possessors but the sexual offenders who produce child 
pornography that are largely responsible for its production. 
That theory, however, is inconsistent with the market theory. 
Unfortunately, neither assertion finds adequate support in the 
legislative record.\2\ This absence places the bill's further-
reaching provisions involving virtual child pornography and 
pandering of both non-existent and non-obscene materials on 
unsteady footing.
---------------------------------------------------------------------------
    \1\ Another flaw in the Committee Report is the unsupported 
assertion that child pornographers will use real children regardless of 
the legislative scheme that we impose here due to economic incentives. 
In arguing that the use of real children is ``cost effective,'' one 
factor that the Committee Report fails to take into account is the 
effect of the very statutory scheme that we seek to promulgate. In 
other words, it is arguable that creating a statutory scheme with 
differential ``costs'' (e.g. prosecution and substantial jail time) of 
using real children as opposed to computer generated images would 
itself reduce the use of real children in producing such pornography. 
See Committee Report at part III section C(ii).
    \2\ The Committee Report also asserts that a virtual and actual 
photo comparison presented to the House Judiciary Committee in May 2002 
would leave an ``ordinary person * * * hard pressed to distinguish 
between real and virtual depictions.'' See Committee Report at part III 
section C(i). Since that photo array was not presented to this 
Committee and was not in the record before this Committee, however, we 
cannot comment upon the accuracy of this statement.
---------------------------------------------------------------------------
            b. Remaining problems with ``identifiable minor'' provision
    Even though we felt the idea was potentially flawed from 
the outset, we were glad to work alongside Senator Hatch to 
narrow the virtual porn provision before the Judiciary 
Committee. Unfortunately, despite our best efforts, we fear we 
have not done everything possible to strengthen it against 
constitutional challenge.
    Although the Hatch-Leahy amendment adopted in Committee 
included a slightly narrower definition of sexually explicit 
conduct, and excluded cartoons, sculptures, paintings, 
anatomical models and the like, the virtual porn provision 
still sweeps quite broadly and is potentially vague. The 
Administration has insisted maintaining a broad sweep in these 
provisions that places them in peril. New section 
2252A(2)(B)(i) lumps in such truly ``hard core'' sexual 
activities as intercourse, bestiality, and S&M, with simple 
lascivious exhibition of the genitals and simulated intercourse 
where any part of a breast is shown. Equating such disparate 
types of conduct, however, does not mesh with community 
standards and is precisely the type of ``one size fits all'' 
approach that the Supreme Court rejected in the area of virtual 
pornography in the Free Speech Coalition case. The contrast 
between this broad definition and the tighter definition in new 
sections 2252B(a)(2) and (b)(2), crafted by Senators Hatch and 
Leahy, is striking. In fact, we suggested that we include the 
same definition of ``graphic'' conduct found in new section 
2252B in the new section 2252A virtual child porn provision to 
better focus it on hard core conduct. Unfortunately, the 
Administration rejected that proposal, leaving a formulation 
that may be open to overbreadth attacks.
    We also believe that there is a vagueness concern in the 
new section 2252A because, while it is clearly aimed at 
``virtual'' child pornography (where no real children are 
involved), it still requires ``actual'' conduct. In the realm 
of computer generated images, however, the distinction between 
actual and simulated conduct makes no sense. Indeed, this new 
provision is so vague and confusing that it may be open to the 
interpretation that it still requires proof of ``actual'' 
sexual acts involving real children. We hope that the language 
is further clarified in order to address these concerns.
    The Supreme Court made it clear that we can only outlaw 
child pornography in two situations: one, where it is obscene, 
or two, where it involves real kids. That is the law as stated 
by the Supreme Court, whether or not we agree with it.
    We agree with Senator Hatch that legislation in this area 
is important. But regardless of our personal views, any law 
must be within constitutional limits or it does no good at all. 
In our view, the amended ``identifiable minor'' provision, 
which would include most ``virtual'' child pornography in the 
definition of child pornography, crosses the constitutional 
line and needlessly risks protracted litigation that could 
assist child pornographers in escaping punishment.

5. Mandatory directive to the Sentencing Commission

    Another new provision in the bill includes a mandatory 
directive to the U.S. Sentencing Commission to establish 
penalties for these new crimes at certain levels. In our 
experience, however, the non-partisan Sentencing Commission 
operates best when it is allowed to study an issue carefully 
and come up with a particular sentencing guideline based upon 
its expertise in these matters. In fact, in child pornography 
cases the Sentencing Commission has established appropriately 
high penalties in the past, and there is no reason to believe 
that it would not do so again with respect to these new laws.

                             D. CONCLUSION

    Some of the provisions in the PROTECT Act raise legitimate 
concerns, but in the interest of making progress, we support 
consideration and passage of the measure in its current form. 
We hope that we can work to improve this bill further so that 
it has the best possible chance of withstanding a 
constitutional challenge.
    As we have explained, we believe that this issue is so 
important that we have been willing to compromise and to 
support a measure even though we do not agree with each and 
every provision that it contains. That is how legislation is 
normally passed. We hope that the Administration and the House 
do not seek further changes that could bog the bill down. We 
urge swift consideration and passage of this important bill as 
it is currently written.

                                   Patrick Leahy.
                                   Joseph R. Biden, Jr.
                                   Russell D. Feingold.

(ATTACHMENT A)

                                                  October 17, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Senator Leahy: Thank you for the opportunity to 
express the views of the National Center for Missing and 
Exploited Children on these critically important issues for our 
nation's children. Your stewardship of the Committee's tireless 
efforts to craft a statute that will withstand conditional 
scrutiny is wise and in the longterm best interest of the 
nation. The National Center for Missing and Exploited Children 
is grateful for your leadership on this issue.
    Please find below my response to your written questions 
submitted on October 9, 2002 regarding the ``Stopping Child 
Pornography: Protecting our Children and the constitution.''
    1. Our view is that the vast majority (99-100%) of all 
child pornography would be found to be obscene by most judges 
and juries, even under the standard of beyond a reasonable 
person under community standards model, it is highly unlikely 
that any community would not find child pornography obscene.
    There is a legitimate concern that the obscenity standard 
does not fully recognize, and therefore punish the exceptional 
harm to children inherent in child pornography. This issue can 
be addressed by the enactment of tougher sentencing provisions 
if the obscenity standard is implemented in the law regarding 
child pornography. Moreover, mere possession of obscene 
materials under current law in most jurisdictions is not a 
criminal violation. If the obscenity standard were implemented 
for child pornography the legislative intent should be clear 
concerning punishment of possession of child obscene 
pornography.
    In the post-Free Speech decision legal climate the 
prosecution of child pornography cases under an obscenity 
approach is a reasonable strategy and sound policy.
    2. Based on my experience all the images in actual criminal 
cases meet the lawful definition of obscenity, irrespective of 
what community you litigate the case. In my experience there 
has never been a visual depiction of child pornography that did 
not meet the constitutional requirements for obscenity.
    3. The National Center for Missing and Exploited Children 
fully supports the correction of this sentencing disparity and 
welcomes the provision of additional tools for federal judges 
to remove these predators from our communities. These types of 
offenders belong to a demographic that is the highest 
percentile in terms of recidivism than any other single 
offender category.
    4. The National Center for Missing and Exploited Children 
fully supports language that allows only ``non-government 
sources'' to provide tips to the CyberTipline. The role of the 
CyberTipline at the National Center for Missing and Exploited 
Children is to provide tips received from the public and 
Electronic Communication Services communities and make them 
available to appropriate law enforcement agencies. Due in part 
to the overwhelming success of the system and in part to the 
tragedies of September 11, 2001, federal law enforcement 
resources cannot address all of the legitimate tips and leads 
received by the CyberTipline. Allowing the National Center for 
Missing and Exploited Children and appropriate federal agencies 
to forward this valuable information to state and local law 
enforcement while at the same time addressing legitimate 
privacy concerns is fully supported.
    5. The victim shield provision is an excellent and timely 
policy initiative and one that a fully supported by the 
National Center for Missing and Exploited Children. This 
provision should allow the narrow exception to a general non-
disclosure clause that anticipates the need for law enforcement 
and prosecutors to use the victim's photography and other 
relevant information for the sole purpose of verification and 
authentication of an actual child victim in future cases. This 
exception would allow the successful prosecution of other cases 
that may involve a particular victim and still provide the 
protection against the revictimization by the criminal justice 
system.
    6. The National Center for Missing and Exploited Children 
fully supports extending the terms of authorized supervised 
release in federal cases involving the exploitation of minors. 
The evidence for extended supervision in such cases is 
overwhelming. Without adequate treatment and continued 
supervision, there is a significantly higher risk for re-
offending by this type of offender. Moreover, there is a 
significant link between those offenders who possess child 
pornography and those who sexually assault children. Please see 
the attached studies that the National Center for Missing and 
Exploited Children has produced on these issues.
    Thank you again for the opportunity to address these 
important issues. Should you need further input or assistance 
please contact us at your convenience.
            Sincerely,
                                     Daniel Armagh,
                         Director, Legal Resource Division,
                National Center for Missing and Exploited Children.
                                ------                                

(ATTACHMENT B)

                    American Civil Liberties Union,
                                Washington National Office,
                                  Washington, DC, February 5, 2003.
Re S. 151, The Prosecutorial Remedies and Tools Against the 
        Exploitation of Children Today Act of 2003.
Hon. Patrick J. Leahy,
Russell Senate Office Building,
Washington, DC.
    Dear Senator Leahy: The Prosecutorial Remedies and Tools 
Against the Exploitation of Children Today Act of 2003, 
(PROTECT Act), as amended in the Judiciary Committee markup, is 
a dramatic improvement over a similar bill which passed the 
House in the 107th Congress. It is a thoughtful bill, tailored 
to largely comport with the Supreme Court's decision in 
Ashcroft v. Free Speech Coalition.
    However, this bill still contains some constitutionally 
problematic provisions that may limit its effectiveness in 
addressing child pornography.
     S. 151 imposes criminal liability on people who 
possess or produce material protected by the First Amendment.
    S. 151 continues to define as child pornography ``virtual 
child pornography'' (protected speech) instead of limiting its 
application to pornography that uses actual children 
(unprotected speech).
    S. 151 defines an ``identifiable minor'' as, among other 
things, one who is ``virtually indistinguishable from an actual 
minor.'' It also prohibits visual depictions of a ``minor, or 
an individual who appears to be a minor'' when that depiction 
is of the enumerated sexual acts.\1\ The latest amendments 
specifically exclude ``depictions that are drawings, cartoons, 
sculptures, diagrams, anatomical models, or paintings.'' This 
does help to address some of the Supreme Court's concerns, but 
does not go far enough.
---------------------------------------------------------------------------
    \1\ This is in relation to the definition of ``obscene'' child 
pornography, which will be discussed below.
---------------------------------------------------------------------------
    In Ashcroft v. Free Speech Coalition, the Court identified 
the governmental interest in the CPPA as protecting actual 
children from exploitation. For that reason, the provisions of 
the CPPA prohibiting ``virtual'' child pornography were held to 
be overbroad and not narrowly tailored. The Court noted ``the 
CPPA prohibits speech that records no crime and creates no 
victims by its production.'' Ashcroft at 1403.
    Like the CPPA, S. 151 prohibits material that records no 
crime and creates no victims by its production. The term 
``virtually indistinguishable'' was apparently lifted from 
Justice O'Connor's concurrence, and did not receive endorsement 
by the majority. To the extent that the material does not 
depict an actual minor, it is protected speech under the First 
Amendment. Furthermore, prohibiting material in which an 
individual appears to be a minor ignores both Ashcroft and New 
York v. Ferber, 458 U.S. 747 (1982). In Ferber, the Court 
relied on the distinction between actual and virtual child 
pornography as a basis for its holding: ``[I]f it were 
necessary for literary or artistic value, a person over the 
statutory age who perhaps looked younger could be utilized. 
Simulation outside of the prohibition of the statute could 
provide another alternative.'' Id. at 763. Thus, the Court 
explicitly endorsed using older individuals who appear to be 
minors.
    This bill punishes depiction of wholly fabricated images in 
which no child was used to create the image. Because S. 151 
subjects to liability those who possess and depict both actual 
and ``virtual'' child pornography, it is overbroad and likely 
to be found unconstitutional.
    Additionally, the Supreme Court has made it clear that 
speech cannot be prohibited or deemed ``obscene'' unless it 
appeals to the prurient interest. The amendments to S. 151 now 
prohibit obscene depictions of a minor engaging in sexually 
explicit conduct. Because this provision of the bill uses the 
actual term ``obscene,'' it is likely that a court would use 
the current definition of obscenity found in Miller v. 
California (discussed below), and thus find that provision 
constitutional. However, S. 151 then goes further, imposing in 
proposed 18 U.S.C. Sec. 2252B(a)(2) and (b)(2), criminal 
liability on speech regardless of whether it appeals to the 
prurient interest, and therefore prohibits speech the Supreme 
Court will likely find protected under the First Amendment.
    S. 151 creates a new section, 18 U.S.C. Sec. 2252B of the 
United States Code, creating a subset of child pornography that 
either involves the use of an actual minor or one who appears 
to be a minor, and is also obscene (hereinafter ``obscene child 
pornography'').\2\ The bill in Sec. 2252B(a)(2) and (b)(2) 
defines obscene child pornography as an image that is, or 
appears to be, a minor, engaging in graphic bestiality, 
sadistic or masochistic abuse, or sexual intercourse, including 
genital-genital, oral-genital, anal-genital, or oral-anal, 
whether between persons of the same or opposite sex and lacks 
serious literary, artistic, political, or scientific value.
---------------------------------------------------------------------------
    \2\ Child pornography involving the use of actual children may be 
prohibited whether or not it is obscene. Because Ashcroft held that 
``virtual'' child pornography is protected speech, it may only be 
prohibited if it is otherwise obscene.
---------------------------------------------------------------------------
    The United States Supreme Court in Miller v. California, 
413 U.S. 15 (1973), defined obscene material with reference to 
a 3-part test: (1) whether the average person, applying 
contemporary community standards, would find that the work, 
taken as a whole, appeals to the prurient interest; (2) whether 
the work depicts or describes, in a patently offensive way, 
sexual conduct specifically defined by the applicable state 
law; and (3) whether the work, taken as a whole, lacks serious 
literary, artistic, political, or scientific value. Id. at 25. 
Only if all three elements are present may the work be deemed 
obscene.
    In the proposed Sec. 2252B(a)(2) and (b)(2), obscenity is 
defined with reference to only two parts of the Supreme Court's 
three-part test. It specifically defines the sexual conduct 
that isobjectionable, and requires that the work lack literary, 
artistic, political, or scientific value. It does not however, require 
that the average person, applying contemporary community standards, 
would find the work, taken as a whole, appeals to the prurient 
interest. The bill therefore lacks one of the three essential elements 
in defining obscenity. Given that the United States Supreme Court has 
repeatedly, and as recently as April of last year, affirmed Miller \3\, 
this omission creates serious doubts about the constitutionality of the 
bill.
---------------------------------------------------------------------------
    \3\ Miller was most recently reaffirmed by Ashcroft v. Free Speech 
Coalition, 122 S.Ct. 1389 (2002), in which the Court struck certain 
provisions of the Child Pornography Protection Act (CPPA), partly on 
the basis that the act covered works regardless of whether they 
appealed to the prurient interest, or whether the image was patently 
offensive, or whether it had literary, artistic, political, or 
scientific value.
---------------------------------------------------------------------------
    Finally, the ``Nonrequired Element of Offense'' provision 
contained in the proposed Sec. 2252B(c) is too broad, punishing 
speech that is protected under the First Amendment. That 
provision states that ``It is not a required element of any 
offense under this section (obscene visual representation of 
the sexual abuse of children) that the minor depicted actually 
exist.'' In Ashcroft, the Supreme Court made it clear that only 
obscene child pornography could be prohibited without regard to 
whether or not the child depicted actually exists. Because the 
provisions defining obscene child pornography in the proposed 
Sec. 2252B(a)(2) and (b)(2) define obscenity without regard to 
the prurient interest requirement, they apply to non-obscene 
depictions and are, therefore, overbroad.
     The ``pandering'' provision continues to sweep in 
non-commercial speech, making it overbroad.
    The pandering provision contained in S. 151 is much 
narrower than the provision held unconstitutional in Ashcroft. 
For example, it does not prohibit possession of material 
promoted as containing obscene child pornography, although it 
does prohibit the actual promotion of the material as 
containing such scenes. In Ashcroft, the Supreme Court 
extensively discussed ``pandering'' as an offense, and 
advocated restricting such provisions to commercial 
exploitation.\4\
---------------------------------------------------------------------------
    \4\ Non-commercial speech currently receives greater protection 
under the First Amendment. Commercial speech is still protected under 
the First Amendment, however restrictions on such speech are reviewed 
by the Court with a more lenient standard. See Central Hudson Gas & 
Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 
(1980).
---------------------------------------------------------------------------
    S. 151 prohibits knowingly ``advertis[ing], promot[ing], 
present[ing], describ[ing], distribut[ing], or solicit[ing] 
through the mails, or in interstate or foreign commerce by any 
means, including by computer, any material or purported 
material in a manner that conveys the impression that the 
material or purported material is, or contains, an obscene 
visual depiction of a minor engaging in sexually explicit 
conduct.''
    The Supreme Court considered a pandering provision in 
Ashcroft. Relying on Ginzburg v. United States, 383 U.S. 463, 
474 (1966), the Court noted that ``[I]n close cases evidence of 
pandering may be probative with respect to the nature of the 
material in question and thus satisfy the [obscenity] test.'' 
``Where a defendant engages in the `commercial exploitation of 
erotica solely for the sake of their prurient appeal,' Id. at 
466, the context he or she creates may itself be relevant to 
the evaluation of the materials.'' Ashcroft at 1406. In noting 
difficulties with theCPPA pandering provision, the Court noted 
``the statute * * * does not require that the context be part of an 
effort at `commercial exploitation.' '' Id. Thus, while pandering may 
be relevant in determining whether material is obscene, it should be 
limited to instances of commercial exploitation. Failure to so restrict 
the pandering provision in S. 151 renders it constitutionally 
questionable.
    A further problem involves S. 151's punishing advertising, 
promoting, presenting, describing, distributing or soliciting 
``any material in a manner that reflects the belief, or that is 
intended to cause another to believe'' the material is 
prohibited. This provision allows punishing distribution of 
material that may well be protected speech, merely because of 
the way it was marketed. For example, if someone offered to 
provide you with a copy of Disney's Snow White, but represented 
to you that it contained scenes of obscene child pornography, 
that person will have committed a crime, punishable by a fine 
and up to fifteen years in prison, even though Snow White is 
clearly material protected under the First Amendment.
    Additionally, S. 151's pandering provision applies to 
``purported material,'' whatever that may be. As you noted in 
your introductory remarks about S. 151, this provision is 
problematic, in that it ``criminalizes speech even when there 
is no underlying material at all--whether obscene or non-
obscene, virtual or real, child or adult.'' Adding this 
ambiguous term to a provision already called into question by 
the Supreme Court's decision in Ashcroft makes this provision 
even more problematic.
     S. 151 chills protected speech because it places 
the burden on the defendant to prove the material was produced 
using an adult or was ``virtually'' created.
    S. 151 provides an affirmative defense to various offenses, 
including mailing or transporting child pornography and 
possession. Unfortunately, few defendants will be able to avail 
themselves of the defense, even if they are innocent of the 
charges. Normally, only the producer of the material will be in 
a position to meet the burden of proof. Subsequent possessors 
or distributors are unlikely to have the records to meet that 
burden.
    In Ashcroft, the government attempted to argue that the 
CPPA was not a measure suppressing speech but instead was a law 
shifting the burden to the accused to prove the speech was 
lawful. The government relied on the affirmative defense that 
allowed a defendant to avoid conviction for nonpossession 
offenses by showing that the materials were produced using only 
adults and were not otherwise distributed in a manner conveying 
the impression that they depicted real children. The Court 
noted in this regard:

          The Government raises serious constitutional 
        difficulties by seeking to impose on the defendant the 
        burden of proving his speech is not unlawful. An 
        affirmative defense applies only after prosecution has 
        begun, and the speaker must himself prove, on pain of a 
        felony conviction, that his conduct falls within the 
        affirmative defense. In cases under the CPPA, the 
        evidentiary burden is not trivial. Where the defendant 
        is not the producer of the work, he may have no way of 
        establishing the identity, or eventhe existence, of the 
actors. If the evidentiary issue is a serious problem for the 
Government, as it asserts, it will be at least as difficult for the 
innocent possessor. The statute, moreover applies to work created 
before 1996, and the producers themselves may not have preserved 
records necessary to meet the burden of proof. Failure to establish the 
defense can lead to a felony conviction. Id. at 1404-1405. [Emphasis 
added.]

    The affirmative defense provided in S. 151 suffers from the 
same infirmities. It covers possession offenses in which the 
possessor may have no ability to avail himself of the 
affirmative defense. For example, one may possess a work that 
someone else produced completely by computer \5\, involving no 
real children, yet have no ability to prove that in court. The 
bill also imposes criminal liability on those who created 
material before the effective date of the statute, which means 
even the producers may not have preserved the records necessary 
to meet the burden of proof.
---------------------------------------------------------------------------
    \5\ The Supreme Court held in Ashcroft, that virtual child 
pornography is protected under the First Amendment.
---------------------------------------------------------------------------
    Because the affirmative defense may lead to conviction of 
innocent possessors or distributors, the Supreme Court may find 
it unconstitutional. While the Court did not rule in Ashcroft 
that shifting the burden of proof to the accused was per se 
unconstitutional, it did acknowledge the ``serious 
constitutional difficulties'' in doing so.
     S. 151 hamstrings the defense, violates a 
defendant's right to due process of law, and violates the right 
to confront one's accusers.
    It has long been axiomatic that in our Constitutional form 
of government, a defendant has the right to confront his 
accusers, and a right to due process of law. S. 151 takes these 
rights away by limiting admissible evidence.
    S. 151 amends 18 U.S.C. Sec. 2252A to provide that ``[i]n 
any prosecution under this chapter, the name, address, or other 
identifying information, other than the age or approximate age, 
of any minor who is depicted in any child pornography shall not 
be admissible and the jury shall be instructed, upon request of 
the United States, that it can draw no inference from the 
absence of such evidence in deciding whether the child 
pornography depicts an actual minor.''
    This provision hamstrings the defense and could result in 
the conviction of innocent people. The government will no 
longer have to prove an actual minor was involved in the 
production of the material; it only needs to provide the ``age 
or approximate age'' of the alleged minor. If the defense 
wishes to contest the government's assertion, it will be 
prohibited from introducing the birth record or any other 
information that would prove the identity and age of the minor. 
The jury would be left to speculate whether any records 
introduced actually applied to the alleged minor. Furthermore, 
the defense will not be allowed to cross-examine the alleged 
minor to determine whether that minor is the one depicted in 
the material.
    The same problems apply to the provision contained on page 
15, lines 6 through 8, in which the definition of 
``identifiable minor'' ``shall not be construed to require 
proof of the actual identity ofthe identifiable minor.'' 
Essentially, the government is in the position of saying to the jury, 
``trust us, we wouldn't lie to you. The picture is that of an 
identifiable minor.'' The defense is then disallowed from inquiring 
into specifics about the identity of the alleged minor. Provisions such 
as these tilt the playing field impermissibly in favor of the 
prosecution.
     S. 151's extraterritorial jurisdiction provisions 
may result in other countries imposing liability on U.S. 
companies for their speech, even though that speech is 
protected under the First Amendment.
    S. 151 provides for extraterritorial jurisdiction where the 
defendant intends that the material be transported to the 
United States, or where the material is actually transported to 
the United States. This, unfortunately, will provide support 
for other countries that wish to exert jurisdiction over 
entities in the United States who make material available on 
the World Wide Web that violates the law of the other countries 
yet is protected speech in the United States.
    Internet Service Providers in the United States were 
outraged when France exercised jurisdiction over Yahoo! US 
based solely on its posting information on the World Wide Web 
that was not targeted at France. France prohibits the sale of 
Nazi memorabilia. Although Yahoo! had a French office which 
abided by French law, Yahoo! US operated in the United States. 
Yahoo! US had Nazi memorabilia for sale on its auction site. 
Simply because French citizens could access Yahoo! US, France 
brought an action against Yahoo! US for violating French law. A 
U.S. court has held that France may not bring an action in the 
U.S. to enforce the judgment, and that Yahoo! US was protected 
under the First Amendment. The case is working its way through 
the appeals process.
    Once an item is posted on the World Wide Web, it is 
available to anyone, anywhere in the world, regardless of the 
poster's intentions.
    S. 151 prohibits transporting a ``visual depiction to the 
United States, its territories or possessions, by any means, 
including by computer or mail.'' Thus, if someone in Zimbabwe 
posts child pornography on the World Wide Web, it is accessible 
in the United States. Although S. 151 requires an intent that 
the depiction be transported to the United States, it does not 
make clear that mere posting on the Internet or World Wide Web 
does not constitute the requisite intent. If mere posting 
constitutes the requisite intent, other countries could use 
this provision to argue they can prohibit content based in the 
United States and protected by the First Amendment solely 
because the content was ``intended'' to be available in that 
foreign country. For example, France could ban Nazi memorabilia 
from U.S. web sites, China could ban U.S. criticism of its 
leaders, and Saudi Arabia could ban images of bikini-clad women 
pictured on U.S. travel sites. First Amendment protection for 
U.S. entities would be stripped away solely because the speech 
was available in foreign countries with limited respect for 
freedom of speech.
     S. 151 contains ineffective mandatory minimum 
sentences for certain repeat offenders.
    S. 151 extends existing mandatory minimum sentences to a 
new category of repeat offenders. Chief Justice William 
Rehnquist has called mandatory sentencing ``a good example of 
the law of unintended consequences,'' and several Members of 
the Senate Judiciary Committee have expressed reservations 
about mandatory minimum sentences. The Judicial Conferences of 
all 12 federal circuits have urged the repeal of mandatory 
minimum sentences, after concluding that they are unfair and 
ineffective. And numerous studies, including those by the 
Department of Justice and the U.S. Sentencing Commission, 
indicate that mandatory minimum sentencing is not an effective 
instrument for deterring crime.
    Mandatory minimum sentencing deprives judges of the ability 
to fashion sentences that suit the particular offense and 
offender. Despite their flaws, the Sentencing Guidelines are 
better able to take into account the range of factors that are 
relevant to the sentencing decision. The Sentencing Guidelines 
also are better able to exclude factors that give rise to 
unwarranted sentencing disparities. In transferring sentencing 
discretion from judges to prosecutors, mandatory minimum 
sentences transfer the sentencing decision from open courtroom 
to closed prosecutor's office. Consequently, there are 
inadequate guarantees that statutorily prohibited factors such 
as race, age and gender do not influence the ultimate sentence. 
Even when the charging--and, in effect, sentencing--decision is 
free from taint, such closed-door decisions can undermine the 
appearance of equal justice.
    We greatly appreciate the efforts you and Senator Hatch 
have made to craft a bill that will withstand constitutional 
scrutiny. While S. 151 is certainly closer to meeting that goal 
than the earlier House bill, it still falls short of fully 
complying with Ashcroft v. Free Speech Coalition and raises 
other constitutional problems as well.
            Sincerely,
                                   Laura W. Murphy,
                                           Director.
                                   Marvin J. Johnson,
                                           Legislative Counsel.

                      IX. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rule of the Senate, changes in existing law made by S. 
151, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 18--CRIMES AND CRIMINAL PROCEDURE

Part                                                             Section
    I. CRIMES.................................................         1
     * * * * * * *

                             PART I--CRIMES

Chapter                                                          Section
    1. General provisions.....................................         1
     * * * * * * *
110. Sexual exploitation and other abuse of children..............  2251
     * * * * * * *

      CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

Sec.
2251.  Sexual exploitation of children.
2251A.  Selling or buying of children.
2252.  Certain activities relating to material involving the sexual 
          exploitation of minors.
2252A.  Certain activities relating to material constituting or 
          containing child pornography.
2252B.  Obscene visual representatives of the sexual abuse of children.
     * * * * * * *

Sec. 2251. Sexual exploitation of children

    (a) Any person who employs, uses, persuades, induces, 
entices, or coerces any minor to engage in, or who has minor 
assist any other person to engage in, or who transports any 
minor in interstate or foreign commerce, or in any Territory or 
Possession of the United States, with the intent that such 
minor engage in, any sexually explicit conduct for the purpose 
of producing any visual depiction of such conduct, shall be 
punished as provided under [subsection (d)] subsection (e), if 
such persons knows or has reason to know that such visual 
depiction will be transported in interstate or foreign commerce 
or mailed, if the visual depiction was produced using materials 
that have been mailed, shipped, or transported in interstate or 
foreign commerce by any means, including by computer, or if 
such visual depiction has actually been transported in 
interstate or foreign commerce or mailed.
    (b) Any parent, legal guardian, or person having custody or 
control of a minor who knowingly permits such minor to engage 
in, or to assist any other person to engage in, sexually 
explicit conduct for the purpose of producing any visual 
depiction of such conduct shall be punished as provided under 
[subsection (d)] subsection (e) of this section, if such 
parent, legal guardian, or person knows or has reason to know 
that such visual depiction will be transported in interstate or 
foreign commerce or mailed, if that visual depiction was 
produced using materials that have been mailed, shipped, or 
transported in interstate or foreign commerce by any means, 
including by computer, or if such visual depiction has actually 
been transported in interstate or foreign commerce or mailed.
    (c)(1) Any person who, in a circumstance described in 
paragraph (2), employs, uses, persuades, induces, entices, or 
coerces any minor to engage in, or who has a minor assist any 
other person to engage in, any sexually explicit conduct 
outside of the United States, its territories or possessions, 
for the purpose of producing any visual depiction of such 
conduct, shall be punished as provided under subsection (e).
    (2) The circumstance referred to in paragraph (1) is that--
          (A) the person intends such visual depiction to be 
        transported to the United States, its territories or 
        possessions, by any means, including by computer or 
        mail; or
          (B) the person transports such visual depiction to 
        the United States, its territories or possessions, by 
        an means, including by computer or mail.
    [(c)] (d)(1) Any person who, in a circumstance described in 
paragraph (2), knowingly makes, prints, or publishes, or causes 
to be made, printed, or published, any notice or advertisement 
seeking or offering--
          (A) to receive, exchange, buy, produce, display, 
        distribute, or reproduce, any visual depiction, if the 
        production of such visual depiction involves the use of 
        a minor engaging in sexually explicit conduct and such 
        visual depiction is of such conduct; or
          (B) participation in any act of sexually explicit 
        conduct by or with any minor for the purpose of 
        producing a visual depiction of such conduct:
shall be punished as provided under [subsection (d)] subsection 
(e).
    (2) The circumstance referred to in paragraph (1) is that--
          (A) such person knows or has reason to know that such 
        notice or advertisement will be transported in 
        interstate or foreign commerce by any means including 
        by computer or mailed; or
          (B) such notice or advertisement is transported in 
        interstate or foreign commerce by any means including 
        by computer or mailed.
    [(d)] (e) Any individual who violates, or attempts or 
conspires to violate, this section shall be fined under this 
title or imprisoned not less than 10 years nor more than 20 
years, and \1\ both, but if such person has one prior 
conviction under this chapter [18 U.S.C.A. Sec. 2251 et seq.], 
chapter 71, chapter 109A [18 U.S.C.A. Sec. 2141 et seq. of 
Title 18], or chapter 117 [18 U.S.C.A. Sec. 2421 et seq.], or 
under the law of any State relating to the sexual exploitation 
of children, such person shall be fined under this title and 
imprisoned for not less than 15 years nor more than 30 years, 
but if such person has 2 or more prior convictions under this 
chapter, chapter 71, chapter 109A, or chapter 117, or under the 
laws of any State relating to the sexual exploitation of 
children, such person shall be fined under this title and 
imprisoned not less than 30 years nor more than life. Any 
organization that violates, or attempts or conspires to 
violate, this section shall be fined under this title. Whoever, 
in the course of an offense under this section, engages in 
conduct that results in the death of a person, shall be 
punished by death or imprisoned for any term of years or for 
life.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be ``or''.

           *       *       *       *       *       *       *

---------------------------------------------------------------------------

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

    (a) Any person who--
          (1) knowingly transports or ships in interstate or 
        foreign commerce by any means including by computer or 
        mails, any visual depiction, if--

           *       *       *       *       *       *       *

    (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), or (3) of subsection (a) shall be 
fined under this title or imprisoned not more than 15 years, or 
both, but if such person has a prior conviction under this 
chapter [18 U.S.C.A. Sec. 2251 et seq.], chapter 71, chapter 
109A [18 U.S.C.A. Sec. 2141 et seq.], or chapter 117 [18 
U.S.C.A. Sec. 2421 et seq.] or under the laws of any State 
relating to aggravated sexual abuse, sexual abuse, or abusive 
sexual conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 5 years nor 
more than 30 years.
    (2) Whoever violates, or attempts or conspires to violate, 
paragraph (4) of subsection (a) shall be fined under this title 
or imprisoned not more than 5 years, or both, but if such 
person has a prior conviction under this chapter [18 U.S.C.A. 
Sec. 2251 et seq.], chapter 71, chapter 109A [18 U.S.C.A. 
Sec. 2141 et seq.], or chapter 117 [18 U.S.C.A. Sec. 2421 et 
seq.], or under the laws of any State relating to aggravated 
sexual abuse, sexual abuse, or abusive sexual conduct involving 
a minor or ward, or the production, possession, receipt, 
mailing, sale, distribution, shipment, or transportation of 
child pornography, such person shall be fined under this title 
and imprisoned for not less than 2 years nor more than 10 
years.

           *       *       *       *       *       *       *

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

    (a) Any person who--
          (1) knowingly mails, or transports or ships in 
        interstate or foreign commerce by any means, including 
        by computer, any child pornography;

           *       *       *       *       *       *       *

          [(3) knowingly reproduces any child pornography for 
        distribution through the mails, or in interstate or 
        foreign commerce by any means, including by computer;]
          (3) knowingly--
                  (A) reproduces any child pornography for 
                distribution through the mails, or in 
                interstate or foreign commerce by any means, 
                including by computer; or
                  (B) advertises, promotes, presents, 
                distributes, or solicits through the mails, or 
                in interstate or foreign commerce by any means, 
                including by computer, any material or 
                purported material in a manner that reflects 
                the belief, or that is intended to cause 
                another to believe, that the material or 
                purported material is, or contains--
                          (i) an obscene visual depiction of a 
                        minor engaging in sexually explicit 
                        conduct; or
                          (ii) a visual depiction of an actual 
                        minor engaging in sexually explicit 
                        conduct;
          (4) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or on any 
                land or building owned by, leased to, or 
                otherwise used by or under the control of the 
                United States Government, or in the Indian 
                country (as defined in section 1151), knowingly 
                sells or possesses with the intent to sell any 
                child pornography; or
                  (B) knowingly sells or possesses with the 
                intent to sell any child pornography that has 
                been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, 
                including by computer, or that was produced 
                using materials that have been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer; 
                [or]
          (5) either--
                  (A) in the special maritime and territorial 
                jurisdiction of the United States, or any land 
                or building owned by, leased to, or otherwise 
                used by or under the control of the United 
                States Government, or in the Indian country (as 
                defined in section 1151), knowingly possesses 
                any book, magazine, periodical, film, 
                videotape, computer disk, or any other material 
                that contains an image of child pornography; or
                  (B) knowingly possesses any book, magazine, 
                periodical, film, videotape, computer disk, or 
                any other material that contains an image of 
                child pornography that has been mailed, or 
                shipped or transported in interstate or foreign 
                commerce by any means, including by computer, 
                or that was produced using materials that have 
                been mailed, or shipped or transported in 
                interstate or foreign commerce by any means, 
                including by computer,
        shall be punished as provided in subsection (b)[.]; or
          (6) knowingly distributes, offers, sends, or provides 
        to a minor any visual depiction, including any 
        photograph, film, video, picture, or computer generated 
        image or picture, whether made or produced by 
        electronic, mechanical, or other means, where such 
        visual depiction is, or appears to be, of a minor 
        engaging in sexually explicit conduct--
                  (A) that has been mailed, shipped, or 
                transported in interstate or foreign commerce 
                by any means, including by computer;
                  (B) that was produced using materials that 
                have been mailed, shipped, or transported in 
                interstate or foreign commerce by any means, 
                including by computer; or
                  (C) which distribution, offer, sending, or 
                provision is accomplished using the mails or by 
                transmitting or causing to be transmitted any 
                wire communication in interstate or foreign 
                commerce, including by computer,
        for purposes of inducing or persuading a minor to 
        participate in any activity that is illegal.
    (b)(1) Whoever violates or attempts or conspires to 
violate. [paragraphs (1), (2), (3), or (4)] paragraph (1), (2), 
(3), (4), or (6) of subsection (a) shall be fined under this 
title or imprisoned not more than 15 years, or both, but, if 
such person has a prior conviction under this chapter [18 
U.S.C.A. Sec. 2251 et seq.], chapter 71, chapter 109A [18 
U.S.C.A. Sec. 2141 et seq.], or chapter 117 [18 U.S.C.A. 
Sec. 2421 et seq.], or under the laws of any State relating to 
aggravated sexual abuse, sexual abuse, or abusive sexual 
conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 5 years nor 
more than 30 years.
    (2) Whoever violates, or attempts or compires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 5 years, or both, but, if such person has a prior 
conviction under this chapter [18 U.S.C.A. Sec. 2251 et seq.], 
chapter 71, chapter 109A [18 U.S.C.A. Sec. 2141 et seq.], or 
chapter 117 [18 U.S.C.A. Sec. 2421 et seq.], or under the laws 
of any State relating to aggravated sexual abuse, sexual abuse, 
or abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, 
shipment, or transportation of child pornography, such person 
shall be fined under this title and imprisoned for not less 
than 2 years nor more than 10 years.
    [(c) It shall be an affirmative defense to a charge of 
violating paragraphs (1), (2), (3), or (4) of subsection (a) 
that--
          [(1) the alleged child pornography was produced using 
        an actual person or persons engaging in sexually 
        explicit conduct
          [(2) each such person was an adult at the time the 
        material was produced; and
          [(3) the defendant did not advertise, promote, 
        present, describe, or distribute the material in such a 
        manner as to convey the impression that it is or 
        contains a visual depiction of a minor engaging in 
        sexually explicit conduct.]
    (c) Affirmative Defense.--It shall be an affirmative 
defense to a charge of violating paragraph (1), (2), (3), (4), 
or (5) of subsection (a) that--
          (1)(A) the alleged child pornography was produced 
        using an actual person or persons engaging in sexually 
        explicit conduct; and
          (B) each such person was an adult at the time the 
        material was produced; or
          (2) the alleged child pornography was not produced 
        using any actual minor or minors.
No affirmative defense under subsection (c)(2) shall be 
available in any prosecution that involves child pornography as 
described in section 2256(8)(C). A defendant may not assert an 
affirmative defense to a charge of violating paragraph (1), 
(2), (3), (4), or (5) of subsection (a) unless, within the time 
provided for filing pretrial motions or at such time prior to 
trial as the judge may direct, but in no event later than 10 
days before the commencement of the trial, the defendant 
provides the court and the United States with notice of the 
intent to assert such defense and the substance of any expert 
or other specialized testimony or evidence upon which the 
defendant intends to rely. If thedefendant fails to comply with 
this subsection, the court shall, absent a finding of extraordinary 
circumstances that prevented timely compliance, prohibit the defendant 
from asserting such defense to a charge of violating paragraph (1), 
(2), (3), (4), or (5) of subsection (a) or presenting any evidence for 
which the defendant has failed to provide proper and timely notice.
    (d) Affirmative Defense.--It shall be an affirmative 
defense to a charge of violating subsection (a)(5) that the 
defendant--
          (1) possessed less than three images of child 
        pornography; and
          (2) promptly and in good faith, and without retaining 
        or allowing any person, other than a law enforcement 
        agency, to access any image or copy thereof--
                  (A) took reasonable steps to destroy each 
                such image; or
                  (B) reported the matter to a law enforcement 
                agency and afforded that agency access to each 
                image.
    (e) Admissibility of Evidence.--On motion of the 
government, in any prosecution under this chapter, except for 
good cause shown, the name, address, social security number, or 
other nonphysical identifying information, other than the age 
or approximate age, of any minor who is depicted in any child 
pornography shall not be admissible and may be redacted from 
any otherwise admissible evidence, and the jury shall be 
instructed upon request of the United States, that it can draw 
no inference from the absence of such evidence in deciding 
whether the child pornography depicts an actual minor.
    (f) Civil Remedies.--
          (1) In general.--Any person aggrieved by reason of 
        the conduct prohibited under subsection (a) or (b) may 
        commence a civil action for the relief set forth in 
        paragraph (2).
          (2) Relief.--In any action commenced in accordance 
        with paragraph (1), the court may award appropriate 
        relief, including--
                  (A) temporary, preliminary, or permanent 
                injunctive relief.
                  (B) compensatory and punitive damages; and
                  (C) the costs of the civil action and 
                reasonable fees for attorneys and expert 
                witnesses.

Sec. 2252B. Obscene visual representations of the sexual abuse of 
                    children

    (a) In General.--Any person who, in a circumstance 
described in subsection (d), knowingly produces, distributes, 
receives, or possesses with intent to distribute, a visual 
depiction of any kind, including a drawing, cartoon, sculpture, 
or painting, that--
          (1)(A) depicts a minor engaging in sexually explicit 
        conduct; and
          (B) is obscene; or
          (2)(A) depicts an image that is, or appears to be, of 
        a minor engaging in graphic bestiality, sadistic or 
        masochistic abuse, or sexual intercourse, including 
        genital-genital, oral-genital, anal-genital, or oral-
        anal, whether between persons of the same or opposite 
        sex; and
          (B) lacks serious literary, artistic, political, or 
        scientific value;
or attempts or conspires to do so, shall be subject to the 
penalties provided in section 2252A(b)(1), including the 
penalties provided for cases involving a prior conviction.
    (b) Additional Offenses.--Any person who, in a circumstance 
described in subsection (d), knowingly possesses a visual 
depiction of any kind, including a drawing, cartoon, sculpture, 
or painting, that--
          (1)(A) depicts a minor engaging in sexually explicit 
        conduct; and
          (B) is obscene; or
          (2)(A) depicts an image that is, or appears to be, of 
        a minor engaging in graphic bestiality, sadistic or 
        masochistic abuse, or sexual intercourse, including 
        genital-genital, oral-genital, anal-genital, or oral-
        anal, whether between persons of the same or opposite 
        sex; and
          (B) lacks serious literary, artistic, political, or 
        scientific value;
or attempts or conspires to do so, shall be subject to the 
penalties provided in section 2252A(b)(2), including the 
penalties provided for cases involving a prior conviction.
    (c) Nonrequired Element of Offense.--It is not a required 
element of any offense under this section that the minor 
depicted actually exist.
    (d) Circumstances.--The circumstance referred to in 
subsections (a) and (b) is that--
          (1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
          (2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
          (3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
          (4) any visual depiction involved in the offense has 
        been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
          (5) the offense is committed in the special maritime 
        and territorial jurisdiction of the United States or in 
        any territory or possession of the United States.
    (e) Affirmative Defense.--It shall be an affirmative 
defense to a charge of violating subsection (b) that the 
defendant--
          (1) possessed less than 3 such visual depictions; and
          (2) promptly and in good faith, and without retaining 
        or allowing any person, other than a law enforcement 
        agency, to access any such visual depiction--
                  (A) took reasonable steps to destroy each 
                such visual depiction; or
                  (B) reported the matter to a law enforcement 
                agency and afforded that agency access to each 
                such visual depiction.
    (f) Definitions.--For purposes of this section--
          (1) the term ``visual depiction'' includes 
        undeveloped film and videotape, and data stored on a 
        computer disk or by electronic means which is capable 
        of conversion into a visual image, and also includes 
        anyphotograph, film, video, picture, digital image or 
picture, computer image or picture, or computer generated image or 
picture, whether made or produced by electronic, mechanical, or other 
means;
          (2) the term ``sexually explicit conduct'' has the 
        meaning given the term in section 2256(2); and
          (3) the term ``graphic'', when used with respect to a 
        depiction of sexually explicit conduct, means that a 
        viewer can observe any part of the genitals or pubic 
        area of any depicted person or animal during any part 
        of the time that the sexually explicit conduct is being 
        depicted.

           *       *       *       *       *       *       *

Sec. 2256. Definitions for chapter

    For the purposes of this chapter, the term--
          (1) ``minor'' means any person under the age of 
        eighteen years and shall not be construed to require 
        proof of the actual identity of the person;
          (2) ``sexually explicit conduct'' [means actual] 
        means--
                  (A) actual or simulated--
                          [(A)] (i) sexual intercourse, 
                        including genital-genital, oral-
                        genital, anal-genital, or oral-anal, 
                        whether between persons of the same or 
                        opposite sex;
                          [(B)] (ii) bestiality;
                          [(C)] (iii) masturbation;
                          [(D)] (iv) sadistic or masochistic 
                        abuse; or
                          [(E)] (v) lascivious exhibition of 
                        the genitals or pubic area of any 
                        person; or
                  (B)(i) actual sexual intercourse, including 
                genital-genital, oral-genital, and anal-
                genital, or oral-anal, whether between persons 
                of the same or opposite sex, or lascivious 
                simulated sexual intercourse where the 
                genitals, breast, or pubic area of any person 
                is exhibited;
                  (ii) actual or lascivious simulated--
                          (I) bestiality;
                          (II) masturbation; or
                          (III) sadistic or masochistic abuse; 
                        or
                  (iii) actual lascivious or simulated 
                lascivious exhibition of the genitals or pubic 
                area of any person;

           *       *       *       *       *       *       *

          (8) ``child pornography'' means any visual depiction, 
        including any photograph, film, video, picture, or 
        computer or computer-generated image or picture, 
        whether made or produced by electronic, mechanical, or 
        other means, of sexually explicit conduct, where--
                  (A) the production of such visual depiction 
                involves the use of a minor engaging in 
                sexually explicit conduct;
                  [(B) such visual depiction is, or appears to 
                be, of a minor engaging in sexually explicit 
                conduct;]
                  (B) the production of such visual depiction 
                involves the use of an identifiable minor 
                engaging in sexually explicit conduct; or
                  (C) such visual depiction has been created, 
                adapted, or modified to appear that an 
                identifiable minor is engaging in sexually 
                explicit conduct, except that the term 
                ``identifiable minor'' as used in this 
                subparagraph shall not be construed to include 
                the portion of the definition contained in 
                paragraph (9)(B); [or]
                  [(D) such visual depiction is advertised, 
                promoted, presented, described, or distributed 
                in such a manner that conveys the impression 
                that the material is or contains a visual 
                depiction of a minor engaging in sexually 
                explicit conduct; and
          [(9) ``identifiable minor''--
                  [(A) means a person--
                          [(i)(I) who was a minor at the time 
                        the visual depiction was created, 
                        adapted, or modified; or
                          [(II) whose image as a minor was used 
                        in creating, adapting, or modifying the 
                        visual depiction; and
                          [(ii) who is recognizable as an 
                        actual person by the person's face, 
                        likeness, or other distinguishing 
                        characteristic, such as a unique 
                        birthmark or other recognizable 
                        feature; and
                  [(B) shall not be construed to require proof 
                of the actual identity of the identifiable 
                minor.]
          (9) ``identifiable minor''--
                  (A)(i) means a person--
                          (I)(aa) who was a minor at the time 
                        the visual depiction was created, 
                        adapted, or modified; or
                          (bb) whose image as a minor was used 
                        in creating, adapting, or modifying the 
                        visual depiction; and
                          (II) who is recognizable as an actual 
                        person by the person's face, likeness, 
                        or other distinguishing characteristic, 
                        such as a unique birthmark or other 
                        recognizable feature; and
                  (ii) shall not be construed to require proof 
                of the actual identity of the identifiable 
                minor; or
                  (B) means a computer image, computer 
                generated image, or digital image--
                          (i) that is of, or is virtually 
                        indistinguishable from that of, an 
                        actual minor; and
                          (ii) that depicts sexually explicit 
                        conduct as defined in paragraph (2)(B); 
                        and
          (10) ``virtually indistinguishable''--
                  (A) means that the depiction is such that an 
                ordinary person viewing the depiction would 
                conclude that the depiction is of an actual 
                minor; and
                  (B) does not apply to depictions that are 
                drawings, cartoons, sculptures, diagrams, 
                anatomical models, or paintings depicting 
                minors or adults or reproductions of such 
                depictions.

Sec. 2257. Record keeping requirements

    (a) Whoever produces any book, magazine, periodical, film, 
video-tape, or other matter which--

           *       *       *       *       *       *       *

    (d)(1) No information or evidence obtained from records 
required to be created or maintained by this section shall, 
except as provided in this section, directly or indirectly, be 
used as evidence against any person with respect to any 
violation of law.
    (2) Paragraph (1) of this subsection shall not preclude the 
use of such information or evidence in a prosecution or other 
action for a violation [of this section] of this chapter or 
chapter 71, or for a violation of any applicable provision of 
law with respect to the furnishing of false information.
    (h) As used in this this section--
          (1) the term ``actual sexually explicit conduct'' 
        means actual but not simulated conduct as defined in 
        subparagraphs (A) through (D) of paragraph (2) of 
        section 2256 of this title;

           *       *       *       *       *       *       *

          (3) the term ``produces'' means to produce, 
        manufacture, or publish any book, magazine, periodical, 
        film, video tape, computer generated image, digital 
        image, or picture, or other similar matter and includes 
        the duplication, reproduction, or reissuing of any such 
        matter, but does not include mere distribution or any 
        other activity which does not involve hiring, 
        contracting for managing, or otherwise arranging for 
        the participation of the performers depicted; and

           *       *       *       *       *       *       *

    (i) Whoever violates this section shall be imprisoned for 
[not more than 2 years] not more than 5 years, and fined in 
accordance with the provisions of this title, or both. Whoever 
violates this section after having been convicted of a 
violation punishable under this section shall be imprisoned for 
any period of years not more than [5 years] 10 years but not 
less than 2 years, and fined in accordance with the provisions 
of this title, or both.

           *       *       *       *       *       *       *

   CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND 
INTERCEPTION OF ORAL COMMUNICATIONS

           *       *       *       *       *       *       *

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

    (1) The Attorney General, * * *
    (a) any offense punishable by death or by imprisonment for 
more than one year under sections 2274 through 2277 of title 42 
of the United States Code (relating to the enforcement of the 
Atomic Energy Act of 1954), section 2284 of title 42 of the 
United States Code (relating to sabotage of nuclear facilities 
or fuel), or under the following chapters of this title: 
chapter 37 (relating to espionage), chapter 90 (relating to 
protection of trade secrets), chapter 105 (relating to 
sabotage), chapter 115 (relating to treason), chapter 102 
(relating to riots), chapter 65 (relating to malicious 
mischief), chapter 111 (relating to destruction of vessels), or 
chapter 81 (relating to piracy);

           *       *       *       *       *       *       *

    (c) any offense which is punishable under the following 
sections of this title: section 201 (bribery of public 
officials and witnesses), section 215 (relating to bribery of 
bank officials), section 224 (bribery in sporting contests), 
subsection (d), (e), (f), (g), (h), or (i) of section 844 
(unlawful use of explosives), section 1032 (relating to 
concealment of assets), section 1084 (transmission of wagering 
information), section 751 (relating to escape), section 1014 
(relating to loans and credit applications generally; renewals 
and discounts), sections 1503, 1512, and 1513 (influencing or 
injuring an officer, juror, or witness generally), section 1510 
(obstruction of criminal investigations), section 1511 
(obstruction of State or local law enforcement), section 1591 
(sex trafficking of children by force, fraud, or coercion), 
section 1751 (Presidential and Presidential staff 
assassination, kidnapping, and assault), section 1951 
(interference with commerce by threats or violence), section 
1952 (interstate and foreign travel or transportation in aid of 
racketeering enterprises), section 1958 (relating to use of 
interstate commerce facilities in the commission of murder for 
hire), section 1959 (relating to violent crimes in aid of 
racketeering activity), section 1954 (offer, acceptance, or 
solicitation to influence operations of employee benefit plan), 
section 1955 (prohibition of business enterprises of gambling), 
section 1956 (laundering of monetary instruments), section 1957 
(relating to engaging in monetary transactions in property 
derived from specified unlawful activity), section 659 (theft 
from interstate shipment), section 664 (embezzlement from 
pension and welfare funds), section 1343 (fraud by wire, radio, 
or television), section 1344 (relating to bank fraud), sections 
2251 and 2252 (sexual exploitation of children), section 2251A 
(selling or buying of children), section 2252A (relating to 
material constituting or containing child pornography), section 
2252B (relating to child obscenity), section 2260 (production 
of sexually explicit depictions of a minor for importation into 
the United States), sections 2421, 2422, 2423, and 2425 
(relating to transportation for illegal sexual activity and 
related crimes), sections 2312, 2313, 2314, and 2315(interstate 
transportation of stolen property), section 2321 (relating to 
trafficking in certain motor vehicles or motor vehicle parts), section 
1203 (relating to hostage taking), section 1029 (relating to fraud and 
related activity in connection with access devices), section 3146 
(relating to penalty for failure to appear), section 3521(b)(3) 
(relating to witness relocation and assistance), section 32 (relating 
to destruction of aircraft or aircraft facilities), section 38 
(relating to aircraft parts fraud), section 1963 (violations with 
respect to racketeer influenced and corrupt organizations), section 115 
(relating to threatening or retaliating against a Federal official), 
section 1341 (relating to mail fraud), a felony violation of section 
1030 (relating to computer fraud and abuse), section 351 (violations 
with respect to congressional, Cabinet, or Supreme Court 
assassinations, kidnapping, and assault), section 831 (relating to 
prohibited transactions involving nuclear materials), section 33 
(relating to destruction of motor vehicles or motor vehicle 
facilities), section 175 (relating to biological weapons), section 1992 
(relating to wrecking trains), a felony violation of section 1028 
(relating to production of false identification documentation), section 
1425 (relating to the procurement of citizenship or nationalization 
unlawfully), section 1426 (relating to the reproduction of 
naturalization or citizenship papers), section 1427 (relating to the 
sale of naturalization or citizenship papers), section 1541 (relating 
to passport issuance without authority), section 1542 (relating to 
false statements in passport applications), section 1543 (relating to 
forgery or false use of passports), section 1544 (relating to misuse of 
passports), or section 1546 (relating to fraud and misuse of visas, 
permits, and other documents);

           *       *       *       *       *       *       *

      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *

Sec. 2702. Voluntary disclosure of customer communications or records

    (a) Prohibitions.--Except as provided in subsection (b)--

           *       *       *       *       *       *       *

    (b) Exceptions for Disclosure of Communications.--A 
provider described in subsection (a) may divulge the contents 
of a communication--
          (1) to an addressee or intended recipient of such 
        communication or an agent of such addressee or intended 
        recipient;

           *       *       *       *       *       *       *

          (5) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service; [or]
          (6) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted under 
        section 227 of the Victims of Child Abuse Act of 1990 
        (42 U.S.C. 13032); or
          [(6)] (7) to a law enforcement agency--
                  (A) if the contents--
                          (i) were inadvertently obtained by 
                        the service provider; and
                          (ii) appear to pertain to the 
                        commission of a crime; or
                  [(B) if required by section 227 of the Crime 
                Control Act of 1990 [42 U.S.C.A. Sec. 13032]; 
                or]
                  [(C)](B) if the provider reasonably believes 
                that an emergency involving immediate danger of 
                death or serious physical injury to any person 
                requires disclosure of the information without 
                delay.
    (c) Exceptions for Disclosure of Customer Records.--A 
provider described in subsection (a) may divulge a record or 
other information pertaining to a subscriber to or customer of 
such service (not including the contents of communications 
covered by subsection (a)(1) or (a)(2))--
          (1) as otherwise authorized in section 2703;

           *       *       *       *       *       *       *

          (4) to a governmental entity, if the provider 
        reasonably believes that an emergency involving 
        immediate danger of death or serious physical injury to 
        any person justifies disclosure of the information; 
        [or]
          (5) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted under 
        section 227 of the Victims of Child Abuse act of 1990 
        (42 U.S.C. 13032); or
          [(5)] (6) to any person other than a governmental 
        entity.

           *       *       *       *       *       *       *

PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *

CHAPTER 223--WITNESSES AND EVIDENCE

           *       *       *       *       *       *       *

Sec. 3486. Administrative subpoenas

    (a) Authorization.--(1)(A) In any investigation relating 
of--

           *       *       *       *       *       *       *

    (C) A subpoena issued under subparagraph (A) with respect 
to a provider of electronic communication service or remote 
computing service, in an investigation of a Federal offense 
involving the sexual exploitation or abuse of children shall 
not extend beyond--
          (i) requiring that provider to disclose [the name, 
        address, local and long distance telephone toll billing 
        records, telephone number or other subscriber number of 
        identity, and length of service of a subscriber to or 
        customer or such service and the types of services the 
        subscriber or customer utilized,] the information 
        specified in section 2703(c)(2) which may be relevant 
        to an authorized law enforcement inquiry; or

           *       *       *       *       *       *       *

TITLE 42--THE PUBLIC HEALTH AND WELFARE

           *       *       *       *       *       *       *

                  CHAPTER 132--VICTIMS OF CHILD ABUSE

 Subchapter I--Improving Investigation and Prosecution of Child Abuse 
Cases

           *       *       *       *       *       *       *

Subchapter IV--Reporting Requirements

           *       *       *       *       *       *       *

Sec. 13032. Reporting of child pornography by electronic communication 
                    service providers

    (a) Definitions.--In this section--
          (1) the term ``electronic communication service'' has 
        the meaning given the term in section 2510 of Title 18; 
        and
          (2) the term ``remote computing service'' has the 
        meaning given the term in section 2711 of Title 18.
    (b) Requirements.--
          (1) Duty to report.--Whoever, while engaged in 
        providing an electronic communication service or a 
        remote computing service to the public, through a 
        facility or means of interstate or foreign commerce, 
        obtains knowledge of facts or circumstances from which 
        a violation of section 2251, 2251A, 2252, 2252A, or 
        2260 of Title 18, involving child pornography (as 
        defined in section 2256 of that title) or a violation 
        of section 2252B of that title, is apparent, shall, as 
        soon as reasonably possible, make a report of such 
        facts or circumstances to the Cyber Tip Line at the 
        National Center for Missing and Exploited Children, 
        which shall forward that report to a law enforcement 
        agency or agencies designated by the Attorney General.
          (2) Designation of agencies.--Not later than 180 days 
        after Oct. 30, 1998, the Attorney General shall 
        designate the law enforcement agency or agencies to 
        which a report shall be forwarded under paragraph (1).
          (3) In addition to forwarding such reports to those 
        agencies designated in subsection (b)(2), the National 
        Center for Missing and Exploited Children is authorized 
        to forward any such report to an appropriate official 
        of a state or subdivision of a state for the purpose of 
        enforcing state criminal law.
          [3] (4) Failure to report.--A provider of electronic 
        communication services or remote computing services 
        described in paragraph (1) who knowingly and willfully 
        fails to make a report under that paragraph shall be 
        fined--
                  (A) in the case of an initial failure to make 
                a report, not more than $50,000; and
                  (B) in the case of any second or subsequent 
                failure to make a report, not more than 
                $100,000.
    (c) Civil Liability.--No provider or user of an electronic 
communication service or a remote computing service to the 
public shall be held liable on account of any action taken in 
good faith to comply with or pursuant to this section.

           *       *       *       *       *       *       *

    (f) Conditions of Disclosure of Information Contained 
Within Report.--
          (1) In general.--No law enforcement agency that 
        receives a report under subsection (b)(1) shall 
        disclose any information contained in that report, 
        except that disclosure of such information may be 
        made--
                  (A) to an attorney for the government for use 
                in the performance of the official duties of 
                the attorney;

           *       *       *       *       *       *       *

                  [(D) as permitted by a court at the request 
                of an attorney for the government, upon a 
                showing that such information may disclose a 
                violation of State criminal law, to an 
                appropriate official of a State or subdivision 
                of a State for the purpose of enforcing such 
                State law.]
                  (D) where the report discloses a violation of 
                State criminal law, to an appropriate official 
                of a State or subdivision of a State for the 
                purpose of enforcing such State law.

           *       *       *       *       *       *       *

                                
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