19–010

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 definiVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
2

tion 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 

3

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 

4

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. § 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. § 2256(8)(B). New York v. Ferber, 458 U.S. 

747 (1982), ruled the Court, categorically denies First Amendment 

protection only to sexually explicit depictions 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 

5

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 acVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
6

tual 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 costeffective 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 indistinVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
7

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. § 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. 

guishable 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. §§ 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 youthfullooking 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 acVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
8

2Prosecutions 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. 3Of 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.

tual children were used in creating the depictions which form the 

basis of the prosecution.2

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. § 2252A that relies upon 

the new definition of ‘‘identifiable minor’’ contained in § 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 § 2256(2)(B).3 Under S. 151, it is an affirmative defense that the subject depicted was not, in fact, a real minor. 

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, reVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
9

ceived, 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 

10

4Such 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. 6Senators 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. 7The 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.

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

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. 

§ 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). 

S. 151 also creates a new obscenity section, to be codified at 18 

U.S.C. § 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 

11

8These 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 § 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 § 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. 

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.’’ 

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. § 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 § 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

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 obVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
12

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. 10Senator 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. 

jection noted,9 and ordered the bill to be reported favorably to the 

Senate, with a recommendation that the bill do pass. 

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. § 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. 

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. § 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. § 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. § 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 scruVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
13

11Senator 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. 12Senator 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. 

tiny. 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’’ from images 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.’’ 

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. § 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

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 

14

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. 

§ 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. § 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. § 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 

15

13Senator 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. 14Senator 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. 

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. § 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. § 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

Section 16: Investigative Authority Relating to Child Pornography. This section amends 18 U.S.C. § 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

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. 

(16)

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 

17

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 prosVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00017 Fmt 6604 Sfmt 6604 E:\HR\OC\SR002.XXX SR002
18

ecutor, 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. § 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. § 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. § 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). 

19

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 fedVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00019 Fmt 6604 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
20

eral 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 Electronic Communications Privacy Act 

(ECPA), 18 U.S.C. § 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. § 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, 

21

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 ‘‘antimorphing’’ 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. 

§ 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 that the Hatch-Leahy amendment included in new sections 2252B(a)(2) and (b)(2) a definition that the 

22

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. § 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 socalled 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 

23

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 

24

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. 

25

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 the prosecutor’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 

26

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). 2The 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. 

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. 

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. UnfortuVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00026 Fmt 6604 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
27

nately, 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 nonpartisan 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. 

28

(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, fedVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00028 Fmt 6604 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
29

eral 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.

30

1This is in relation to the definition of ‘‘obscene’’ child pornography, which will be discussed 

below. 

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. 

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 proVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00030 Fmt 6604 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
31

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. 3Miller 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. 

posed 18 U.S.C. § 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. § 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 § 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. 

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 § 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 is objectionable, 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. 

Finally, the ‘‘Nonrequired Element of Offense’’ provision contained in the proposed § 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 § 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. 

32

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). 

• 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

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 the CPPA 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 

33

5The Supreme Court held in Ashcroft, that virtual child pornography is protected under the 

First Amendment. 

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 even the 

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. 

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, 

34

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. § 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 of the 

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 

35

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. 

36

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. 

(37)

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. 

* * * * * * *

§ 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 øsubsection (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 

38

1So in original. Probably should be ‘‘or’’. 

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 øsubsection (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.

ø(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 øsubsection (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. 

ø(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 

39

person has one prior conviction under this chapter [18 U.S.C.A. 

§ 2251 et seq.], chapter 71, chapter 109A [18 U.S.C.A. § 2141 et seq. 

of Title 18], or chapter 117 [18 U.S.C.A. § 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. 

* * * * * * *

§ 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. § 2251 et 

seq.], chapter 71, chapter 109A [18 U.S.C.A. § 2141 et seq.], or 

chapter 117 [18 U.S.C.A. § 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. § 2251 et seq.], chapter 

71, chapter 109A [18 U.S.C.A. § 2141 et seq.], or chapter 117 [18 

U.S.C.A. § 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. 

* * * * * * *

§ 2252A. Certain activities relating to material constituting 

or containing child pornography 

(a) Any person who—

40

(1) knowingly mails, or transports or ships in interstate or 

foreign commerce by any means, including by computer, any 

child pornography; 

* * * * * * *

ø(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; øor¿

(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)ø.¿; or

41

(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. øparagraphs (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. § 2251 et seq.], chapter 71, chapter 

109A [18 U.S.C.A. § 2141 et seq.], or chapter 117 [18 U.S.C.A. 

§ 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. § 2251 et seq.], chapter 71, chapter 

109A [18 U.S.C.A. § 2141 et seq.], or chapter 117 [18 U.S.C.A. 

§ 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. 

ø(c) It shall be an affirmative defense to a charge of violating 

paragraphs (1), (2), (3), or (4) of subsection (a) that—

ø(1) the alleged child pornography was produced using an actual person or persons engaging in sexually explicit conduct 

ø(2) each such person was an adult at the time the material 

was produced; and 

ø(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—

42

(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 the defendant 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 

43

(C) the costs of the civil action and reasonable fees for attorneys and expert witnesses.

§ 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, analgenital, 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, analgenital, 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; 

44

(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 any photograph, 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. 

* * * * * * *

§ 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’’ ømeans actual¿ means—

(A) actual or simulated—

ø(A)¿ (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether 

between persons of the same or opposite sex; 

ø(B)¿ (ii) bestiality; 

ø(C)¿ (iii) masturbation; 

ø(D)¿ (iv) sadistic or masochistic abuse; or 

45

ø(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; 

ø(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); øor¿

ø(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 

ø(9) ‘‘identifiable minor’’—

ø(A) means a person—

ø(i)(I) who was a minor at the time the visual depiction was created, adapted, or modified; or 

ø(II) whose image as a minor was used in creating, 

adapting, or modifying the visual depiction; and 

ø(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 

ø(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 

46

(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.

§ 2257. Record keeping requirements 

(a) Whoever produces any book, magazine, periodical, film, videotape, 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 øof 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 ønot 

more than 2 years¿ not more than 5 years, and fined in accordance 

47

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 ø5 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 

* * * * * * *

§ 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), 

48

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 

* * * * * * *

§ 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—

49

(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; øor¿

(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

ø(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

ø(B) if required by section 227 of the Crime Control Act 

of 1990 [42 U.S.C.A. § 13032]; or¿

ø(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; øor¿

(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 

ø(5)¿ (6) to any person other than a governmental entity. 

* * * * * * *

PART II—CRIMINAL PROCEDURE 

* * * * * * *

CHAPTER 223—WITNESSES AND EVIDENCE 

* * * * * * *

§ 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 

50

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 øthe 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 

* * * * * * *

§ 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 reVerDate Jan 31 2003 06:02 Feb 15, 2003 Jkt 019010 PO 00000 Frm 00050 Fmt 6604 Sfmt 6602 E:\HR\OC\SR002.XXX SR002
51

port to an appropriate official of a state or subdivision of a 

state for the purpose of enforcing state criminal law.

ø3¿ (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; 

* * * * * * *

ø(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. 

* * * * * * *

Æ