U.S. GOVERNMENT PRINTING OFFICE

64–763CC WASHINGTON : 2000

OBSCENE MATERIAL AVAILABLE VIA

THE INTERNET

HEARING

BEFORE THE

SUBCOMMITTEE ON TELECOMMUNICATIONS,

TRADE, AND CONSUMER PROTECTION

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MAY 23, 2000

Serial No. 106–115

Printed for the use of the Committee on Commerce

(

COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON TELECOMMUNICATIONS, TRADE, AND CONSUMER PROTECTION

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman

MICHAEL G. OXLEY, Ohio,

Vice Chairman

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ROY BLUNT, Missouri

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

BILL LUTHER, Minnesota

RON KLINK, Pennsylvania

TOM SAWYER, Ohio

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

JOHN D. DINGELL, Michigan,

(Ex Officio)

(II)

3

C O N T E N T S

Page

Testimony of:

Burgin, Joseph W., Jr ...................................................................................... 31

Flores, J. Robert, Vice President and Senior Counsel, National Law Center for Children and Families ...................................................................... 13

Laaser, Mark R., Executive Director and Cofounder, Christian Alliance

for Sexual Recovery ...................................................................................... 7

LaRue, Janet M., Senior Director of Legal Studies, Family Research

Council ........................................................................................................... 26

Gershel, Alan, Deputy Assistant Attorney General, Criminal Division;

accompanied by Terry R. Lord, Chief, Child Exploitation and Obscenity

Section, Criminal Division, Department of Justice .................................... 49

Stewart, Tracy R., Head of Technology, FamilyClick.com, LLC ................... 18

Material submitted for the record by:

Largent, Hon. Stene, a Representative in Congress from the State of

Oklahoma, letter dated June 8, 2000, to Hon. W.J. ‘‘Billy’’ Tauzin,

enclosing material for the record ................................................................. 77

(III)

(1)

OBSCENE MATERIAL AVAILABLE VIA THE

INTERNET

TUESDAY, MAY 23, 2000

HOUSE OF REPRESENTATIVES, COMMITTEE ON COMMERCE, SUBCOMMITTEE ON TELECOMMUNICATIONS, TRADE, AND CONSUMER PROTECTION, Washington, DC.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room

2123, Rayburn House Office Building, Hon. W.J. ‘‘Billy’’ Tauzin

(chairman) presiding.

Members present: Representatives Tauzin, Oxley, Stearns, Deal,

Largent, Shimkus, Pickering, Ehrlich, Bliley (ex officio), Luther,

and Green.

Staff present: Linda Bloss-Baum, majority counsel; Mike

O’Reilly, professional staff; Cliff Riccio, legislative assistant; and

Andy Levin, minority counsel.

Mr. TAUZIN. The subcommittee will please come to order.

Today the subcommittee convenes to discuss the perplexing subject of obscenity and sexually explicit material available on the

Internet. I say that it is perplexing because while the law governing obscenity has been well established for years, many pornographers and others that broadcast sexually explicit material today

online seem to be immune from prosecution under applicable Federal law.

In fact, an example of the apparent Justice Department reluctance in this matter was exhibited just this morning. The Attorney

General’s office at the Department of Justice was here today to testify, and they exercised their discretion in leaving this committee

room and refusing to testify because we made a simple request that

they sit and listen to the witnesses first and comment on their testimony. They claim the Department of Justice will not sit and listen to constituents at a hearing, and so they have taken upon

themselves to leave this hearing room and have refused to testify

in the order in which the Chair has set the testimony.I find this

absolutely a great example of the arrogance of our current Justice

Department.

Let my say it again: They wouldn’t sit and listen to the witnesses

who want to complain about the fact that the Justice Department

has refused or somehow been totally negligent in enforcing the obscenity laws of this country.

So we will not hear from the Justice Department this morning,

but you can rest assured that the Attorney General will be hearing

from this committee in regards to the performance of her witnesses

2

this morning who have, as I said, chosen to leave this hearing room

rather than testify following the testimony of the witnesses who

are gathered to discuss this important subject with us today.

Not even the Supreme Court has denied that sexually explicit

material exists on the Internet. Material extends from modestly titillating to the hardest core material you can imagine. Disturbing

enough, a great deal of this material is in fact legally obscene

under the so-called 3-point Miller test established by the Supreme

Court because it appeals to prurient interests, is patently offensive

and lacks any literary, artistic or political value in any community

where viewing such material is possible. This material therefore is

unprotected by the first amendment, which means that it can be

regulated at all levels of government. Not surprisingly, both the

Federal Government and every State that I know of have implemented obscenity laws that restrict the distribution of obscene material to varying degrees and ban child pornography altogether.

And with reference Title 18, Sections 1462, 65, 66, 67 and 1470,

the Supreme Court stated in Reno versus ACLU, the very case

which struck down challenged provisions of the communications

act, the decency act, the CDA—this is a quote from the Supreme

Court—‘‘Transmitting obscenity, whether via the Internet or other

means, is already illegal under Federal law for both adults and juveniles.’’ Despite that the main point of the decision in Reno versus ACLU

was that the challenged provisions of the challenged decency act

did not pass constitutional muster, the case is just as important for

the Federal courts’ observation of existing Federal obscenity law.

I quote from a U.S. District court’s opinion which was upheld by

the Supreme Court. ‘‘Vigorous enforcement of current obscenity and

child pornography laws should suffice to address the problem the

government identified in court and which concerned Congress when

it enacted the CDA. When the CDA was under consideration by

Congress, the Justice Department itself communicated its view

that CDA was not necessary because it, Justice, was prosecuting

online obscenity, child pornography and child solicitation under existing laws and would continue to do so.’’

Well, ladies and gentlemen, the point the court is making is very

simple. Regardless of what happened to CDA, the laws already on

the books are clear and strong, strong enough to control obscenity.

Unfortunately, however, one does not get that impression when reviewing the DOJ’s record of prosecuting purveyors of obscene material online under Federal law.

We are not here today to entertain or consider specific legislation. To the contrary, we are here to better understand why the

Clinton administration refuses to enforce existing Federal obscenity

laws against purveyors of this absolute filth that is accessible to

just about every man, woman and child on the Internet. Frankly,

I think the Justice Department’s record in prosecuting online obscenity is an embarrassment, and I am not surprised that Justice

Department witnesses walked out of this hearing room today, and

I find it appalling that despite the sufficiency of our laws, Justice

has broken its promise to appropriately prosecute.

Under this administration it cannot be denied that we have witnessed the most explosive growth in distribution of obscenity to all

3

ages in American history, hardly the result we intended when we

amended Title 18.

So today I look forward to getting to the bottom of this quagmire.

We certainly hoped that the Department of Justice was ready to

talk to us and answer questions after they had heard the presentation of our witnesses. That hope was apparently misplaced this

morning as the Justice Department has decided to walk out of this

hearing.

The Chair will yield to the gentleman from Ohio for an opening

statement.

Mr. SAWYER. Thank you, Mr. Chairman. I suspect that there is

another side to the story in terms of why the Justice Department

chose not to be here, and I don’t take issue with anything that you

have said, particularly in terms of raising questions about what

that motivation might be.

Mr. TAUZIN. Would the gentleman yield?

Mr. SAWYER. I prefer just to continue if I could. I don’t take

issue—I don’t question what you are saying, only to suggest that

there is, I would suspect, another side to the story.

Mr. TAUZIN. Would the gentleman yield?

Mr. SAWYER. I would be happy to.

Mr. TAUZIN. I will extend the gentleman time. I simply want to

point out, if there is another side we didn’t hear it this morning.

The Justice Department’s only objection was that they didn’t want

to sit and listen—— Mr. SAWYER. Reclaiming my time, I am as frustrated as you are

that they didn’t stay to make that point clear, but I suspect that

there is another side to that story, and I hope that people who are

interested will pursue that as I can assure you I will and I hope

you will do as well, Mr. Chairman.

My frustration is, as you suggest, that there is strong and powerful law with regard to the enforcement of existing statutes against

pornography and indecency, and the medium through which that

is transmitted ought not to make a substantial difference. It is particularly true at a time when we see media merging, where the

kind of findings that we are seeing through the courts with regard

to television will increasingly apply to similar kinds of depiction on

the Internet.

As we see these media merge, as we have already seen on a basic

level, we come back to questions that we have reviewed in other

contexts: Should the Internet be treated any differently? Would it

be wise to regulate TV in one way and the Internet in another? Are

current filters really feasible? Are they effective? If they are not,

what can be done? What Federal regulations can be effective if

technologies are not available? How can we apply the Miller test

using contemporary community standards when the community

that we are talking about, particularly with regard to the Internet,

is virtually global in its scope?

There are serious questions, Mr. Chairman. I am pleased that

you have called this hearing. I am frustrated that we will not hear

from everyone today, but having said that, I would hope that there

would be an opportunity for an additional hearing at which the Department of Justice might have a chance to testify.

Mr. TAUZIN. Will the gentleman yield?

4

Mr. SAWYER. Yes.

Mr. TAUZIN. Apparently the Department of Justice witnesses

have just informed the subcommittee that they are now prepared

to visit with us after the first panel. So apparently we will hear

from them now.

Mr. SAWYER. Good. I am as comforted by that as I suspect you

are.

Mr. TAUZIN. I am very comforted.

Mr. SAWYER. With that, Mr. Chairman, let me just say that this

is not only a matter of standards and values, this is a question of

technical feasibility and a question in this digital environment of

what we mean by community standards when that community is

as large as all of humanity.

Thank you, Mr. Chairman.

Mr. TAUZIN. I thank the gentleman. I point out, however, that

they have left the room. Apparently they may or may not be here

when the first panel discusses the issue. I would hope that they return, at least sit and hear from citizens of this country who are

concerned about the matter. But we will see how that progresses.

The Chair is now pleased to welcome the chairman of the full

committee, the gentleman from Richmond, Virginia, Mr. Bliley.

Chairman BLILEY. Thank you, Mr. Chairman, for holding this

hearing. I would also like to thank our friend Steve Largent for his

work on the issue of obscene material that is being made available

via the Internet. He should be commended for his due diligence.

People who make obscene material and child pornography available on the Internet should be investigated and prosecuted to the

fullest extent of the law. Frankly, I do not feel that the Justice Department has done enough in this area. The fact remains that people are breaking the law every day. Obscene material and child

pornography have always been against the law. Through the Communications Decency Act, we made it illegal on the Internet as

well, but there needs to be a cop on the beat to keep things secure

and to protect society from the deviants who sell, show or promote

this type of material.

This is the job of the Justice Department, and I do hope that

they do come back and testify today. I think it is shameful that

they would not listen to citizens and to hear their complaints. We

see that too often in Federal agencies that they go their own way

and they are not interested in listening to the people who they are

supposed to be looking out for, and that is a shame.

Congress established the COPA commission to come up with

ideas that help parents protect their kids from indecent material

on the Web. I look forward to completion of the work of the commission. I am hopeful that their recommendations to Congress will

provide further insight on how to help cut down on the exposure

to the material we are discussing today.

I want to thank the witnesses for coming today. It is important

to help the many folks who have fallen prey to the massive

amounts of obscene material available over the Internet. This

whole discussion, Mr. Chairman, sort of reminds me back in the

early eighties when we were trying to stamp out the Dial a Porn,

if you remember, and what a time we had. You would think that

common sense would prevail, but it took us about 5 or 6 years beVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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fore we could get a handle on it. I hope it doesn’t take that long

this time.

Thank you.

Mr. TAUZIN. I thank the gentleman.

The Chair is now pleased to welcome the gentleman from Oklahoma, Mr. Largent, with the Chair’s thanks for his extraordinary

diligence in pursuing this matter with the committee, and Mr.

Largent is recognized.

Mr. LARGENT. Thank you, Mr. Chairman, for holding this hearing. I think it is a very important hearing and I am glad that this

subcommittee has the opportunity, hopefully will have the opportunity to discuss with the Department of Justice their efforts to

prosecute Internet obscenity.

Publications for the adult industry have been puzzled over how

likely it is that the adult entertainment industry will enjoy the

same, and I quote, ‘‘benevolent neglect’’ under the next administration that the industry has enjoyed under Janet Reno. It is my understanding that there have been no prosecutions of Internet obscenity by the Department, and I am eager to hear from our Department of Justice witness on this issue.

I am deeply concerned with the type of easily available obscene

content on the Internet today. By definition, obscenity is patently

offensive, appeals to the prurient interest in sex and has no serious

literary, artistic, political or scientific value. It is illegal to distribute to any person including adults, and yet the level of filth and

vile on the Internet is inconceivable, with estimates for the number

of adult Web sites ranging from 40,000 to over 100,000 or more.

The amount of material on the Net is growing exponentially and

nobody is quite sure how many sites exist. Such material would

never be allowed in a bookstore or on television. Do we think the

social costs and community problems previously associated with

adult bookstores and hard core strip clubs have diminished because

it is on the Internet? Certainly not. Instead they have become more

prevalent, more internalized and more destructive.

The aggressive marketing tactics of the adult industry have

brought such material directly into the family rooms of millions of

Americans and also into our schools’ libraries and into the schools

themselves. By such aggressive tactics as spam e-mail, page-jacking and mouse-trapping, innocent adults and children are lured

into a world they did not wish to see and from which it is difficult

to escape once online.

Furthermore, the lack of prosecution has given a false sense of

legitimacy to this industry. Revenues generated by pornography exceed the revenues generated by rock and country music combined.

Adult entertainment sites on the Internet account for the third

largest sector of sales in cyberspace, only behind computer products

and travel, with an estimated $1-$2 billion per year in revenue.

I would ask the committee to remember the following facts. Obscenity is illegal under Federal law. Obscenity has been defined by

the Supreme Court. Obscenity is not protected by the first amendment. It degrades women and diminishes a child’s ability to conceive of a healthy view of adult relationships. It is a destructive

force which is polluting the minds of adults and children alike. We

must aggressively prosecute obscenity in order to uphold the law,

6

protect all Americans from such illegal material and especially protect our children from such material.

Thank you, Mr. Chairman.

Mr. TAUZIN. I thank the gentleman.

The Chair will call the panel forward, please. I am sorry; Mr.

Shimkus has arrived, the gentleman from Illinois.

Mr. SHIMKUS. Thank you, Mr. Chairman. I just applaud the work

of my colleague, Mr. Largent, and look forward to the panel discussion. I yield back my time.

Mr. TAUZIN. I thank the gentleman.

[Additional statement submitted for the record follows:]

PREPARED STATEMENT OF HON. MICHAEL G. OXLEY, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OHIO

Thank you, Mr. Chairman. I believe this is a serious matter, and I’m glad the

Subcommittee is reviewing it.

Let me say up front that I believe some agencies, the FBI and the Customs Service in particular, are doing excellent and very important work in this area. These

agencies are staffed by law enforcement professionals who take stalking, abduction,

and child pornography cases very, very seriously.

I also want to praise the Department of Justice for its vigorous defense of the

Child Online Protection Act. We are currently awaiting a ruling from the Third Circuit, although I must say yesterday’s deeply disappointing Supreme Court decision

regarding unscrambled sexually explicit cable programming would not appear to

bode well. The issues in the two cases are not the same, but I must say that I’m

perplexed that five Justices would vote to strike those rather modest provisions of

the Telecom Act.

What the ruling shows, I think, is that for the time being we-may need to rely

on existing law to protect American families from the corrosive effects of hardcore

pornography. Fortunately, existing law is rather strong, and as Presidents Reagan

and Bush demonstrated, can be used to great effect in the fight against hardcore

porn.

Unfortunately, the present administration has utterly abandoned the war against

obscenity. In this area, there is nothing remotely resembling leadership coming from

the White House or the Vice President’s mansion.

For anyone who doubts this, let’s look at some recent facts: In 1997, U.S. Attorneys prosecuted only 6 obscenity cases. In 1998, there were 8 prosecutions. In 1999,

as near as I can tell, there were none. The level of federal obscenity enforcement

dropped more than 80% during the first six years of the Clinton administration.

Adult Video News, apparently the trade publication of the porn industry, actually

endorsed Bill Clinton for re-election in 1996.

Also from Adult Video News, in an article entitled ‘‘A Ridiculous Amount of New

Adult Product,’’ comes this tidbit: 5,775 new adult releases hit the market in 1995,

marking a staggering 80% increase from the year before. In 1996, there were 7,800

new hardcore video releases.

Contrast this with some of the reports during the Reagan and Bush years. Here’s

a quote from a 1986 New York Times article entitled ‘‘X-Rated Industry in a

Slump:’’ ‘‘The pornographic industry’s plight is due partly to legal challenges... with

a little help from the Reagan administration, an unlikely alliance of conservatives

and feminists has persuaded many retailers to stop carrying adult magazines and

videos... Said Martin Turkel, one of the largest distributors of adult videos in the

country, ‘Next year is going to be the roughest year in the history of the industry.’ ’’

And from Billboard: sales of adult videos at the wholesale level dropped from $450

million in 1986 to $386 million in 1987. That’s compared to $3.9 BILLION in 1996.

And to sort of sum it up, here’s a quote from a Los Angeles Daily News article

about one year into President Clinton’s first term: ‘‘Before Clinton took office, Los

Angeles police were deputized by the federal government so they could help prosecutors conduct monthly raids on Valley pornographers. Under Clinton, there have

been no raids,’’ said Los Angeles police Lt. Ken Seibert. Seibert said, ‘‘Adult obscenity enforcement by the federal government is practically nonexistent since the administration changed.’’

Even more than new laws, Mr. Chairman, we need more enforcement of existing

obscenity statutes. I yield back.

7

Mr. TAUZIN. Will the witnesses please step forward? They include

Mr. Mark Laaser, the executive director and cofounder of the

Christian Alliance for Sexual Recovery; Mr. Robert Flores, vice

president and senior counsel of the National Law Center for Children and Families; Ms. Tracy Stewart, the head of technology at

FamilyClick.com; Ms. Jan LaRue, senior director of legal studies

for the Family Research Counsel here in Washington, D.C.; Mr. Joseph Burgin of Cincinnati, Ohio. And we had Ms. Kathie LeRose

on the agenda today, and apparently she lost a family member, her

father, so we want to keep her in our thoughts today. She is not

able to attend. Apparently her father suffered a heart attack today.

So we want to welcome our panel, and under the rules panelists

are reminded that we have a timing system. You should look at

these devices in front of you. They accord you 5 minutes to summarize your statements, hit the keep points for us.

Your written statements are already a part of our record. By

unanimous consent, without objection, all written statements of

members and panelists are made a part of our record. So ordered,

and we will ask you, as I call you forward, to summarize within

5 minutes so that we can get to Q and A as rapidly as we can.

We will start with Mr. Mark Laaser, the executive director and

cofounder for the Christian Alliance for Sexual Recovery. Mr.

Laaser.

STATEMENTS OF MARK R. LAASER, EXECUTIVE DIRECTOR

AND COFOUNDER, CHRISTIAN ALLIANCE FOR SEXUAL RECOVERY; J. ROBERT FLORES, VICE PRESIDENT AND SENIOR

COUNSEL, NATIONAL LAW CENTER FOR CHILDREN AND

FAMILIES; TRACY R. STEWART, HEAD OF TECHNOLOGY,

FamilyClick.com, LLC; JANET M. LaRUE, SENIOR DIRECTOR

OF LEGAL STUDIES, FAMILY RESEARCH COUNCIL; AND JOSEPH W. BURGIN, JR.

Mr. LAASER. Thank you, Mr. Chairman, and thank you honorable

members of this committee. You have my written testimony in

front of you, and it summarizes some key points as I was able to

ascertain them from the existing research in the field of the damaging effects of obscene material available on the Internet. I would

direct you to the summary statement and I will just briefly go over

that at this time.

Research has shown that 60 percent of all Web site visits access

sexually related sites containing obscene material. It is estimated

and one research study has in fact confirmed that 60 percent of

all——

Mr. TAUZIN. Let me explain, those bells are advising Members of

votes on the House floor. This is going to happen during our hearing process. This in effect is saying we have a 15-minute vote followed by two 5-minute votes which will take us away for about a

half hour. So we will go on for about 10 more minutes and then

we will recess for about a half hour and come back. Mr. Laaser.

Mr. LAASER. I was just saying that it is estimated that 60 percent of all male computer time at work is dedicated to accessing

pornography, and of course, as most of us are aware and as you

said, the growth of the Internet is exponential. It is estimated that

by the year 2001, 95 million Americans will have online access.

8

I should say before I continue that I am here today in my role

as an expert in the field of Internet pornography, and one of the

reasons I got into the field was because prior to the development

of the Internet, I was myself addicted to pornography for 25 years

of my life. It would be unfair for me not to say that I obviously

have some biases because I am myself a person who was lost in

this world, and I thank God that the Internet was not available to

me, because if it had been, I would certainly have been farther

down the road than I was.

The major thing that concerns I think all of us is the growth of

child pornography that is available. As you will see in my written

testimony, even the United States Department of Commerce has

recognized that the growth of child pornography is a major threat

to the welfare of children.

Pornography that is violent in nature is certainly available in a

variety of forms. The other day in preparing for my testimony, I

pulled up a menu that included 25 forms of sadomasochistic activity, including bloodletting, so that we know that violent pornography exists, and I got into it in less than 60 seconds.

Pornography has the ability, according to all psychological theory, to program children early. We are now seeing research that is

telling us that whereas in my generation of men, the average age

a person first saw pornography was age 11, now it is age 5. A child

who has the ability, and we are teaching them in school to do this,

can get into these sites very easily; 4-, 5-, 6-, 7-year-olds now are

seeing things that in my extensive history with pornography I

never saw, pornography that is being seen as violent, it is degrading, it humiliates people and is teaching our children very immature, immoral and damaging roles about themselves.

All psychological theory would certainly confirm that this kind of

material, even if it is in its softest form, has the ability to affect

a child’s attitude, sexual orientation and sexual preferences for the

rest of their life.

Internet pornography also can become very addictive. Addiction

is progressive and leads to more destructive forms of sexual acting

out later in life. All of us who work in this field have seen tremendous social, legal, vocational, financial and physical consequences

as a result.

I would point you to a case study that I put in my written testimony of a family that I have been treating. The 8-year-old daughter was doing a research project on Cinderella, put in the word

‘‘Cinderella’’ to a search engine. The Web site that came up to her

was the picture of a woman who was named Cinderella but was

using an artificial penis to self-stimulate herself. So this 8-year-old

girl, who had been doing what the parents considered to be healthy

research, was immediately exposed to very harmful and violent material.

I would also tell you that our anecdotal experience would suggest

now that women are being exposed to pornography in greater and

greater numbers and rates. Women are now becoming equally addicted to forms of pornography on the Internet. We are seeing an

epidemic rise in the number of cases that we are treating. The belief is in the psychological community that every person has the

ability to be hard wired and to be programmed into various kinds

9

of sexual preference. I believe that we are literally changing the

way women view sexuality in themselves.

In the third section of my written testimony I describe what I believe is one of the unique problems with the availability of the

Internet, in that we call it the triple engine, and that is, that it

is accessible. It used to be that when I was addicted to pornography you had to go to some far-off bookstore. Now today you it can

do it in your own home. It is affordable. A lot of the Web sites offer

loss leaders and free material, and it is certainly anonymous, so

that many of the prohibitions that may have stopped people historically are not present.

But I think No. 2 here in my summation, the thing that concerns

me the most is the accidental nature that even adults or children

who are accessing the Internet for healthy purposes will be

bombarded and barraged. And I would say, Mr. Chairman, that all

of us in the field would consider that the accidental nature of Web

sites that can come up, pictures that can come up, e-mails that can

come up, is a form of sexual assault that is not being regulated in

this country and I would emphasize the word ‘‘sexual assault.’’ We

would get very upset if we knew that any of our children were

being sexually assaulted in any way.

That would conclude my summation. I will leave you to read any

recommendations which may or may not be relevant to this committee.

[The prepared statement of Mark R. Laaser follows:]

PREPARED STATEMENT OF MARK R. LAASER, DIRECTOR, CHRISTIAN ALLIANCE FOR

SEXUAL RECOVERY

Mr. Chairman and honorable members of the Commerce Committee: It is my

honor to be able to testify before this committee. The issues of pornography and of

violence on the Internet are vitally serious ones. The damaging effects on millions

of lives is profound.

My background is that I am trained as a Christian minister and a doctoral level

counselor. I have authored several books in the area of sexual addiction, sexual

compulsivity, and sexual abuse. Perhaps more importantly, I have been in recovery

from a sexual addiction to pornography and other forms of sexual acting out for thirteen years. My own life is an example of how damaging the effects of pornography

can be. Thankfully, my ‘‘sobriety’’ which started in 1987 precedes the availability of

Internet pornography. My remarks based on the limited research that is available

in the field and on my work with hundreds of men, women, and teenagers who have

been effected by Internet pornography.

My remarks can be divided into three areas: 1. The Damaging Effects of Internet

Pornography; 2. Unique Dangers Presented by the Internet; and 3. Suggestions For

What Might Be Done.

THE DAMAGING EFFECTS OF INTERNET PORNOGRAPHY

Prevalence

Various research studies have demonstrated the escalating usage of sexually oriented sites on the Internet. In a 1998 study of hundreds of on-line users, Dr. Al

Cooper found that 15% had accessed one of the top five sex web sites. A follow up

study in 1999 reported that 31% of on-line users visited web sites dedicated to pornography. In the most recent study, the Sexual Recovery Institute of Los Angeles

conducted a research survey and found that 25 million Americans visit cyber-sex

sites every week and that 60% of all web site visits are sexual in nature. It is estimated that by next year 95 million Americans will have access to the Internet.

In the most recent issue of the journal Sexual Addiction and Compulsivity several

authors contend that accessing sexually oriented web sites is not confined to the

home but is a primary problem at work. One study by a leading Fortune 500 company found that 62% of male computer time was spent in cyber-sex sites. A friend

of mine, who is a vice-president of one of our large Twin Cities based companies,

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recently had to fire 20 top level executives because of uncontrolled pornography

usage on company owned computers.

It is commonly accepted by all researchers that sexually oriented web sites are

a tremendous growth industry around the world. Hundreds of new ones are added

every week. Entering even remotely sexually related words into any search engine

will result in thousands of sexually based web site possibilities.

In 1986, the Attorney General’s Select Commission on Pornography sent a report

to Congress. This report was unanimous in a number of findings: 1. It condemned

all sexually explicit material that was violent in nature. 2. It condemned all sexually

explicit material that depicted women in positions that are humiliating, demeaning,

and subjugating. 3. It was opposed to child pornography in any form.

There is no debate that violent pornography proliferates on the Internet. In preparing for this testimony, for example, I pulled up a cyber-sex web site menu

through my AOL search engine that contained listings for 25 different forms of

S&M including blood letting. The forms of violent sexual deviance that can graphically be displayed are almost beyond description. Sadly, I am also aware through

several of my clients that depiction of mutilization and death, so called ‘‘snuff’’ material is available.

Since the Attorney General’s commission report, it is my opinion that all forms

of pornography are degrading to whomever is being portrayed. It is not just women

who can be portrayed in humiliating fashion. The growing number of females who

are visiting sexually oriented web sites along with a heavy percentage of male homosexual usage has caused an increase in the amount of degrading pornography depicting men.

In the 1970s and 1980s, changes in pornography laws sharply reduced the availability of child pornography. The Internet, however, brought massive amounts of it

back into the world. The U.S. Customs Service says on its current web site, ‘‘The

presence of child pornography on the internet and on BBS services is a disturbing

and growing phenomenon.’’

While there has been some success in regulating web sites devoted to child pornography, most of this kind of pornography is trafficked through bulletin board systems (BBS) with ‘‘picture files’’ that can be hidden in a variety of ways, and with

Usenet News groups. These last use binary groups, digitized photographs, which can

be transformed, in a variety of ways. This is not to mention the transmission of emails with photo attachments. While the most common depictions are of child nudity, children in erotic poses, and depictions of children in sexual activity, there is

an incredible amount of depictions of rape, bondage, S&M, and adult-child intercourse.

Various forms of Damage

Specialists in the field of sexuality can be divided about sexual material available

on the Internet. Some even suggest that it has educational value, decreases some

unhealthy inhibitions, and is an otherwise unavailable social outlet. Few would disagree, however, that certain forms of pornography, as just described above, are universally damaging

Of chief concern should be possible damage to children. There can be little doubt

for any of us parents that our children are more computer literate than we are.

Even a five year old might have the computer skills to access any form of web site.

Some have even suggested, as a result, that the average age a child first sees pornography has decreased from age 11 to age 5. We can’t discount the other forms

of pornography that are more readily available today than when I first say pornography in 1961.

According to the book Protecting Your Child in Cyberspace by Steve Kavanagh,

a licensed mental health professional, ‘‘There are many studies that suggest that exposure to pornography can make kids act out sexually against other children . . . It

seems clear that viewing deviant sexual behavior on the internet can cause a child

to develop sexual deviance, which can shape sexual preferences that carry over into

adulthood.’’ In computer terms, a child’s brain can be programmed neuro-anatomically for various forms of sexual orientation. While the brain can’t manufacture new

brain cells it continually manufactures connections between them.

Dr. John Money of Johns Hopkins University first described the theory that the

brain is most critically programmed sexually during early childhood in his 1986

book Lovemaps. Dr. Money’s groundbreaking work suggests that most forms of sexual deviance can be traced to experiences in childhood. Simply exposing a child to

images of deviant sexual activity can have a profound effect. My own personal experience, and the experience of over a thousands clients would confirm this theory. I

would emphasize that it is not just hard-core pornography that can have this effect.

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Many psychologists, such as Dr. Judith Riesman, argue that even the so-called ‘‘soft- er’’ forms, such as in popular magazines, can be just as damaging.

Theories of sexual addiction and compulsivity are controversial in the clinical

community. There is no doubt that the majority of on-line Internet users don’t become addicted to the pornography that can be found there. There is also no doubt

in my mind that many do. Some researchers are even starting to suggest that some

who might not otherwise have become addicted to sex, are now doing so because

of the Internet.

One of the stumbling blocks in the clinical debate about whether sex can be an

addiction centers on the concept of chemical ‘‘tolerance.’’ Many in the medical community feel that for substance or activity to be addictive it must create a chemical

tolerance. Alcoholics know, for example, that over the lifetime of their addiction,

they must consume more and more alcohol to achieve the same effect. New research,

such as by Drs. Harvey Milkman and Stan Sunderwirth, has demonstrated that sexual fantasy and activity, because of naturally produced brain chemicals, has the

ability to create brain tolerance to sex.

I have treated over a thousand male and female sex addicts. Almost all of them

began with pornography. The number one source of pornography currently, and in

epidemic proportions, is the Internet. It used to be that only men accessed sexually

oriented web sites. Sadly, we are beginning to see an increase in the number of

women who are addicted to pornography of all kinds, but mostly on the Internet.

The consequences of Internet pornography can be catastrophic. All of us who work

in the field of sexual addiction have seen a marked increase in Internet addiction

in the last year. Typically, our cases present as people who have lost jobs, vocations,

and marriages due to Internet addiction. In a study of 91 women whose husbands

were so addicted, for example, Jennifer Schneider, M.D. found that all felt hurt, betrayed, and rejected. All of these women felt unfavorably compared. 68% reported

that their partner had become disinterested in sex with them. 22.3% attributed

their divorce from these partners as due to the Internet.

As an addiction, Internet pornography can escalate. It may lead to other forms

of sexual acting out. For some with accompanying personal pathologies, it may lead

to sexual offenses. The physical and legal consequences to the addict and to others

are obvious.

Finally, we should be aware of the dangers of Internet chat rooms as a place

where sexuality can be problematic. We are aware that sexual predators can be

present in chat rooms disguised in a variety of ways. Pedophiles may even send pornographic pictures to prospective child victims as a way of ‘‘softening’’ them up to

eventual encounters. This has been a known form of pedophilic ritual for years. We

have all warned our children against talking to strangers, but the Internet makes

healthy decisions in this regard less likely. A number of well-known cases in which

children and teenagers have been recruited for eventual sexual activity should warn

us of the dangers of chat rooms.

Adults, also, may get caught up in chat rooms. I have a client whose husband

gave her a computer for Christmas. She says that she doesn’t remember the month

of January. She became addicted to the ‘‘romance’’ of online chat. Researchers and

experts in the field of romance addiction, such as Pat Carnes, Ph.D. have clearly

describe that romance creates neurochemicals such as phenylethylamine (PEA)

which would explain the addictive reaction of my client. My client’s romance addiction escalated and she wound up actually meeting four of the men in person and

developing a sexually transmitted disease as a result. I have had a number of clients who would fit this same profile.

On-line pornography and chat rooms appeal to those who are isolated, lonely and

bored. When other emotional and neuro-chemical vulnerabilities are present addictions can be the result.

The Uniqueness of the Internet

One of the reasons that the Internet is so dangerous is because of its certain

uniqueness. Al Cooper, Ph.D. (mentioned above) was the first to suggest the concept

of the ‘‘Triple A Engine’’ of the Internet. He says that its uniqueness is that it is

Accessible, Affordable, and Anonymous.

When I saw my first pornographic magazine, I had to be a detective to find what

drug stores kept it in some hidden cabinet. As an adult I had to go to many fairly

sordid places to find what I was looking for. The point is both as an adolescent and

as an adult I had to go looking. Today, the Internet has made it completely accessible to the youngest of users. There are forms of pornography available today that

weren’t available even in the most perverse of locations just five years ago. Every

year we see a rise in the kinds of material that are easily available. Many communities, such as my own in Minneapolis, are facing the problem of the easy accessiVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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bility of pornography using computers in public schools and libraries. We are a free

speech society. Recently, even the voters of a conservative city like Holland, Michigan rejected putting filtering devices on public library computers.

Internet pornography is affordable. We know that many people who may have

paid for something originally can transmit it to others for free. We also know that

many sexually oriented web sites offer free pictures as an enticement to log in with

a credit card. Such free enticements led one of my clients to become addicted to sex

on the Internet. He eventually spent $85,000 in the month of February. If there are

people who might otherwise restrict their use of pornography, or various more expensive forms of it, because of money, there is enough free material available to

keep them going. The majority of my clients who are addicted to Internet pornography don’t pay for it.

Several psychologists, such as Dr. Mark Schwartz director of the Masters and

Johnson Institute, have said that the anonymous nature of the Internet makes

many more people vulnerable to it. He says that some who might not become compulsively involved in deviant sexual activities because of having to go to ‘‘dangerous’’

places and risking exposure, are now getting involved in the obscurity and ‘‘safety’’

of their homes. What this means is that more and more people are becoming more

and more involved in sexually deviant forms acting out. It used to be than ‘‘normal’’

people might have an aversion to going to places that catered to sexual deviance,

such as S&M bars. Now through on-line pornography, chat, and exchange, it is

much easier to become involved in these activities.

To the triple A engine I would add a forth ‘‘A,’’ accidental. Those who have sought

to protect the free speech rights of pornographers have long claimed that it is an

individual’s free choice to view pornography. On the Internet, however, pornography

may come looking for you. All of us are familiar with the unsolicited e-mails that

advertise sexually oriented web sites. That is one thing. The greater danger for

those who otherwise seek to use the World Wide Web for constructive purpose is

that they will accidentally be exposed to sexually oriented cites.

Recently, for example, parents that I know told me the story of how their 8-yearold daughter was researching the fairy tale Cinderella on the web. She entered Cinderella in the search engine of her on-line service provider. She was given a number

of options. One of them included the title, ‘‘See Cinderella for Yourself.’’ This little

girl of course wanted to see Cinderella, so she clicked in. She was immediately confronted with the picture of a nude female using a artificial penis to stimulate herself. I would consider this to be a form of sexual assault.

Robert Freeman-Longo, a well-known sexologist and researcher, conducted a recent study using AOL, the largest on-line service provider. He entered the words

‘‘parental control’’ into the search engine. 12.508 sites came up including a wide variety of sexually oriented ones. Can there be any doubt that even if you are looking

for certain types of materials, they may accidentally come to you? Some might even

question whether or not some of this is accidental. Estimates are that 85% of the

production of pornography in this country is controlled by organized crime. Do we

doubt that this faction of our culture would be aggressive in ‘‘purveying’’ their product?

As a recovering sex addict, I am personally offended by the aggressive and unique

nature of Internet pornography. If I were an alcoholic, there would be no one bringing free alcoholic beverages to my door. Yet, in my work I have a professional need

to be on-line frequently. I am assaulted daily by sexual opportunities that I have

not invited into my life or pursued.

What Needs To Be Done

Briefly, let me suggest some points to think about concerning what might be done.

1. Regulation—As Americans we are generally afraid of censorship, as we should

be. In that fear, however, we should not avoid the questions of when it might be

necessary. To be truly free we should continually seek to control any form or oppression. It is clear to me, and many of my colleagues, that if we don’t seek to regulate

the cyber-sex industry, we are allowing a form of sexual abuse to continue unchallenged.

The law enforcement community in this country is capable of regulating pornography that is destructive. I would refer this committee to the report of Louis J.

Freeh, Director of the FBI, to the Senate Appropriations Subcommittee for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies of

March 10, 1998. This report centered on effort to control the proliferation of child

pornography. When we are in agreement that something is offensive and destructive

we can devote energies that can bring it under relative control. Existing laws could

be enforced if we could come to such agreement. Does there need to be special comVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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missions to make recommendations as to what really are the dangers of Internet

pornography?

2. Parent Education and Awareness—We might all agree that parents and child

caregivers should be our main defense against children becoming involved in the

dangers of the Internet. I would suggest however, that most parents are either ignorant of or apathetic toward the dangers of the Internet. Education and awareness

similar to that provided about drugs, alcohol, and smoking seems appropriate.

3. Child Education and Awareness—Similarly, we should implement programs to

educate our youth about Internet dangers similar to those that are available for

drugs, alcohol and smoking. This might include the use of requiring that all sexually

oriented web sites print warning on them similar to those that we require for tobacco. Remember, that this material may be addictive and, as such, even physical

consequences are likely.

4. Mandate That Filtering Devices Be Used by Computers in Public Places—Given

the four ‘‘A’s’’ described above, we should especially protect children using computers in public places from getting assaulted by pornography. The same can be said

for adults. Many kids may be able to ‘‘hack’’ around these filters, but that should

not stop us from protecting those who can’t.

5. Reward Employers Who Provide Filters At the Workplace—We are becoming

more aware of the lost productivity that Internet pornography leads to. This is already having an impact on countless American businesses. We should encourage

employers to educate employees about dangers, provide monitoring and filtering,

and provide treatment for employees in trouble.

6. Fund Research About Effective Treatment of Internet Addiction—We already

know that many of the forms of treatment that are effective with alcoholics and

drug addicts can be applied to those who suffer with Internet pornography addiction. Little research exists to date about the specific modalities that are beneficial

with this population. Since this is a growing problem, we need to act now. My belief

is that we need to be concerned about the supply of pornography on the Internet,

but that we must be equally concerned about the supply.

7. Tax Pornographic Web Sites—Monies from the taxation of alcohol and tobacco

are used for research, treatment, and education. Why could this not also be done

for pornography? All of my other recommendations could be funded by such a tax.

We should be willing to enter the debate that will inevitably ensue as to what is

pornographic. There are enough sites that are obviously pornographic to the vast

majority of Americans to begin with

I believe that Internet pornography is a great plague on this nation. I hope that

these observations are helpful to the committee. I am willing to answer any questions and to provide members with any specific references to research that I have

quoted.

Mr. TAUZIN. We will take one more witness before we do a halfhour break for these three votes that will be on the floor. So we

will go now to Mr. Robert Flores, vice president and senior counsel

of the National Law Center. Mr. Robert Flores.

STATEMENT OF J. ROBERT FLORES

Mr. FLORES. Mr. Chairman, honorable members of the committee, thank you for providing me with an opportunity to testify

this morning on the important and troubling issue of the explosive

and uncontrolled growth of obscenity on the Internet. In my career

as an assistant D.A. In Manhattan, acting deputy chief of the Department’s Child Exploitation and Obscenity Section and as a special law enforcement advisor with the National Law Center, and

now as a commissioner on the congressional COPA commission, I

have seen the vicious tactics of the pornography industry, the syndicates, and the destruction that they hand out, as well as the actions of pedophiles, and I am sure of one thing: that law enforcement has value, and effective law enforcement will be able to deal

with a substantial amount of this criminal problem.

I know that vigorous and fair enforcement of the law can solve

many of those problems when prosecutors use the laws given to

them by the Congress.

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In the past 5 years, much has changed about the industry. In

late 1995, few of the major pornographers had a major presence on

the Internet. While the amount of material that was then available

was overwhelming, today it is available in quantities and formats

which make it a ubiquitous commodity. Today, obscenity merchants

have become so bold because of the lack of action by the Justice

Department that they have gone public, and I mean public, by

being on the NASDAQ, launching IPOs on the New York Stock Exchange, and Forbes magazine, as well as Forester Research and

other publications report that pornography to the tune of $1 billion

already flows over the Internet and it is expected to double or triple within the next 1 or 2 years alone.

In addition to the change in the amount today, adult pornography sites have moved to feature as a predominant theme sexually explicit material which is marketed as depicting teen, young,

Lolita, virgin and high school girls and boys. The term ‘‘barely

legal’’ is all over the Internet. Now, many of these terms were once

the sole province of child pornographers. Yet this jargon and code

has become a stable of adult obscenity marketers.

Pornographers are also the most aggressive marketers. They

have used newly developed push technologies, alongside offensive

and fraudulent marketing ploys. The Internet user community is

bombarded with advertisements, tricked into visiting sites, given

hot links to porn when search engines are asked for innocent sites,

sent unsolicited porn spam e-mails and trapped in endless mousetraps that bounce them from porn site to porn site when they try

to leave.

In spite of all of this, the Department of Justice has refused to

take action, in spite of the fact that the Congress has specifically

earmarked a million dollars for activity to target obscenity online.

It is critical that the Congress understand and recognize that the

refusal of the Justice Department to enforce existing obscenity laws

is unjustified and inexcusable.

In 3 short years, between 1989 and 1992 approximately, we were

able to prosecute more than 120 major obscenity distributors and

we took in more than $21 million in fines and forfeitures. The obscenity test works. These prosecutions are difficult. They do need

expertise but it can be done. And the record should be clear that

there is no question that the test that is going to be applied is the

same test that was applied in 1989, in 1992, and has been applied

by State and local prosecutors throughout the United States over

the past years.

As the Supreme Court stated in Reno, transmitting obscenity,

whether via the Internet or other means, is already illegal under

Federal law for both adults and juveniles. The reach of this criminal prohibition is also the same. Thus we can prosecute obscenity

where somebody stores it on their computer, any District through

which it travels on the Internet and the District into which it is

received.

In 1996, Chairman Hyde moved to make sure that it was clear

to everyone, including Federal prosecutors, that Federal laws apply

and Congress amended sections 1462 and 1465 of Title 18 to specifically include interactive computer services. Now, we weren’t

powerless before that. The Thomas case, which the Justice DepartVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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ment will probably talk about, was prosecuted before that amendment under existing law because it is illegal to use wire communications, the telephone lines.

Finally, even the question of foreign transmissions into the

United States has been answered. Most of the world’s hard-core obscenity comes from America’s porn syndicates, and they are subject

to U.S. Law no matter where they send their criminal materials to

or from. Hiding their Web servers overseas won’t save them. We

can prosecute American criminals in U.S. district courts and seize

their assets.

Contrary to complaints made by some, our law reaches overseas.

As a practical matter, we can prosecute Web site owners who directly profit from the exploitation, the people who produce and distribute the movies, even the recruiters and procurers of women

who run virtual prostitution operations, making live images available, and finally those who bankroll this industry.

Our Constitution protects speech, not obscenity, and the President and the Justice Department in particular must recognize that

difference and fulfill their obligations. I would ask that the appendices also to my written record be included in the record.

Mr. TAUZIN. Without objection so ordered. The Chair thanks the

gentleman.

[The prepared statement of J. Robert Flores follows:]

PREPARED STATEMENT OF J. ROBERT FLORES, VICE PRESIDENT AND SENIOR

COUNSEL, NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES

Mr. Chairman and Honorable Members of this Committee, thank you for providing me with an opportunity to testify this morning on the important and troubling issue of the explosive and uncontrolled growth of obscenity on the Internet.

In my career as an Assistant D.A. in Manhattan, acting Deputy Chief of the Department of Justice’s Child Exploitation and Obscenity Section, as a special law enforcement advisor with the National Law Center for Children and Families, and now as

a Commissioner on the Congressional COPA Commission, I have seen the vicious

tactics of the pornography syndicates, the destruction handed out by pedophiles, and

the value in effective law enforcement over the years. I believe in the law as an answer to criminal social problems and I know that vigorous and fair enforcement of

the law can solve many of those problems when prosecutors use the laws given them

by their Legislatures.

It is obvious that the uncontrolled growth of this criminal activity must be effectively addressed, and soon, or Congress will continue to be confronted with the need

for increased regulation, rising levels of sexual abuse and dysfunction in adults and

children, increased health care costs to treat those dysfunctions and the victims of

sexual abuse and addiction, the poverty that results from broken homes and marriages over sexual abuse and addiction, and even the slower growth of Internet use

by children and families who are rightly afraid of its dark side.

In the past five years, much has changed in the size and nature of the Internet

based pornography industry, mostly on the World Wide Web and Usenet

newsgroups. In late 1995, few of the major pornographers had a major presence on

the Net. While the amount of material that was then available was astounding by

anyone’s count, today it is available in quantities and formats that make it a ubiquitous commodity. Today, obscenity merchants have gone public, as in the NASDAQ

and other capital markets. Forbes reports that ‘‘pornography to the tune of $1 billion already flows over the Internet.’’

In addition to the change in the amount of material on the Internet, a look at

what now comprises a sizeable and growing portion of hard-core obscenity, should

send shivers up the spine of every person of good will. Today, adult pornography

sites have moved to feature, as a predominant theme, sexually explicit material

which is marketed as depicting ‘‘teen’’, ‘‘young’’, ‘‘Lolita’’, ‘‘virgin’’, and ‘‘high school’’

girls and boys. Once the sole province of child pornographers, this jargon and code

has now become a staple of adult obscenity marketers.

16

Does this threaten children? You better believe it does. Our kids and grand-kids

see it and become indoctrinated by it. Pedophiles and porn addicts see it and become

incited by it. Even the U.S. Supreme Court recognized that the mere existence of

child pornography images is an ongoing danger to children, because of the stimulating effect it has on pedophiles and the seductive effect it has on children. See

Osborne v. Ohio, 495 U.S. 103, at 111 and n. 7 (1990). That’s why Congress

criminalized the possession of child pornography in Title 18, U.S. Code, Section

2252, and added computerized child porn in Section 2252A. How strange indeed, if

alone among all other speech, adult obscenity did not also stimulate and encourage

people to action.

The pornography industry has also become among the most aggressive marketers

on the Internet, using newly developed ‘‘push’’ technologies alongside offensive and

fraudulent marketing ploys. Thus, even if it were ever true, and I doubt it, that only

those who sought out obscenity could find it, today only a lucky few are able to

avoid it, as the Internet user community is bombarded with advertisements, tricked

into visiting sites, given hot links to porn when search engines are asked for innocent sites, sent unsolicited porn spam e-mails, and trapped in endless mousetraps

that bounce them from porn site to porn site when they try and leave.

In spite of the explosive growth in the distribution of obscenity, aggressive marketing efforts which assault and trap unwilling Web surfers, and a focus on material

which portrays children as a suitable sexual interest for adults, the Department of

Justice has refused to take action.

It is critical for the Congress to recognize that this refusal of the Justice Department to enforce existing obscenity laws is unjustified and inexcusable. Members of

this Congress and your predecessors have provided the tools and means to address

this problem, but those federal statutes are not being used.

The record should be clear that there is no question as to what the test is that

will be applied when prosecutions are brought involving Internet distribution or

pandering of obscene material. Even in the Communications Decency Act and Child

Online Protection Act cases, cases which are well known to the pornography industry, the Supreme Court and federal District Courts, recognized that federal obscenity law, based on the Miller test, applies to the Internet. As the Supreme Court stated in Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 2347 n. 44 (1997): ‘‘Transmitting

obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles.’’ While this is not a

point to which some may want to draw attention, that is the law. Moreover, those

courts offered enforcement of existing obscenity and child pornography laws as part

of the solution to the problem of protecting minors from sexually explicit material.

Moreover, the Department of Justice represented to the courts that they would do

so, though they have yet to prosecute a single case of substance.

Just as the test for obscenity remains the same, the reach and applicability of the

criminal prohibitions to Internet distribution and pandering of obscenity also remains the same. Thus, someone who sells obscenity may be prosecuted in the place

where he stores the material on his computer, any district through which it passes,

and the district into which it is received. Under Section 1462, for instance, it is a

felony to use the phone lines and other communications carriers and facilities of

interstate and foreign commerce to knowingly upload, download, or transmit obscenity.

In 1996, in order to clarify that federal laws apply to the Internet, Congress

amended Sections 1462 and 1465 of Title 18 and specifically included ‘‘interactive

computer services’’ among those facilities which may not be used to traffic obscenity.

Even then, the Department was unwilling to move forward to address this criminal

activity and in four years not a single Internet based obscenity case has been

brought by main Justice.

Finally, even the question of foreign transmissions into the United States has

been answered and there is no serious debate that we cannot reach conduct which

originates in foreign countries. The frequently heard argument that we really can’t

do anything about Internet obscenity because so much of it comes from overseas is

specious. Most of the world’s hard-core obscenity comes from America’s porn syndicates and they are subject to U.S. law no matter where they send their criminal

materials from or to. Hiding their Web servers overseas won’t save them, we can

still prosecute American criminals in U.S. District Courts and seize their assets and

credit card receipts from U.S. banks. Moreover, I can’t imagine it could be used by

the Justice Department to justify its lack of effort. For in testimony on March 9,

2000, before the Committee on the Judiciary, Deputy Assistant Attorney General

Kevin Di Gregory, took justifiable pleasure in announcing that the week before his

testimony, ‘‘a jury in federal district court in New York found Jay Cohen, owner of

an Internet gambling site in Antigua, guilty of violating 18 U.S.C., section 1084, a

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1 Agreement for the Suppression of the Circulation of Obscene Publications, 37 Stat 1511;

Treaties in Force 209 (US Dept State, Oct 31, 1956).

statute that makes it illegal for a betting or wagering business to use a wire communication facility to transmit bets or wagers in interstate or foreign commerce.’’ Contrary to the complaints made by some, the courts have consistently made clear

that federal obscenity law applies in cyberspace as it does in real life. Thus, the answer to the question of who and what may be prosecuted under federal obscenity

law is as well known to the ACLU and pornography industry lawyers as it is to Government prosecutors. Title 18 sections 1462, 1465, 1466, 1467, and 1470 apply to

Internet distribution and pandering and may be used today by prosecutors interested in protecting children and families from this scourge.

As a practical matter, I believe that federal investigators and prosecutors can and

must bring cases which would make a difference for average families and which

would be a giant step towards stopping sexual exploitation. For example, prosecutions can be brought against the Web site owners who most directly profit from this

form of human exploitation. The producers and distributors of movies, pictures, and

other obscene material who wholesale them to the Web sites for resale can also be

pursued under existing law. The recruiters and procurers of women who run virtual

prostitution operations making live images available through the Internet may also

be prosecuted for transmitting obscenity. And finally, those who bankroll these operations, many of whom have historically been organized criminal operations, may

also be investigated and prosecuted.

Leaders and businesses in Europe, Asia, Latin America, and our other trading

partners look to the United States to see what we, the major source of obscenity

worldwide, will do with this form of exploitation. In fact, there is a 1911 Treaty on

the Suppression of Obscene Publications that would provide an existing framework

for international cooperation to deal with hard-core obscenity on the Internet and

World Wide Web.1 That Treaty is still in force and now has at least 126 member

countries as signatory nations, including most of the Americas, Europe, and Asia.

We seek to lead in every other Internet related area, why not here as well. Can

money be made by this industry? Of course. In fact, it is one of the few guaranteed

ways to succeed financially on the Internet. But at what cost? It is not free, either

to the people who consume the products or the society where it runs rampant. We

cannot fail to lead simply on the assumption that some amount of obscenity comes

from overseas. To do that would be to turn over our Country and its safety to pornographers and sex business operators who are savvy enough to move their servers

and remote offices overseas. We don’t do it in any other area of criminal law, why

would we start here?

Our Constitution protects speech, it does not protect obscenity. The President and

the Justice Department in particular must recognize that difference and fulfill their

obligation to pursue violations of the laws passed by Congress. Mindlessly investigating and prosecuting cases, whether child pornography, child stalking, or even

obscenity, will not make children and adults safe from being assaulted by material

that is not only offensive but illegal. A comprehensive and coherent strategy which

addresses each of the major aspects of the obscenity and sex business operations is

necessary. Whoever is blessed with the opportunity to lead in November will bear

the responsibility of choosing a path down which we will all walk. It is hard to

imagine leadership on this issue being worse than today, when the pornography

trade association is able to ask the question in its March 2000 trade publication,

‘‘how likely is it, would you say, that we are going to enjoy the same benevolent

neglect that the industry has enjoyed under Janet Reno?’’ It is shameful that the

American porn industry has come to look at law enforcement in that way.

Thank you for the opportunity to address this Committee, and I would be pleased

to answer any questions you may have.

Mr. TAUZIN. Let me ask you all now to stand down for a half

hour. We understand there are 3, possibly 4 votes on the floor. We

will reconvene in a half hour. So we will come back at 11:10, and

we will reconvene with this panel, complete it, and then invite our

second panel.

We thank you very much. The committee stands in recess.

[Brief recess.]

Mr. TAUZIN. The subcommittee will please come back to order.

We will ask our witnesses again to take seats. As we recessed, we

had just heard from Mr. Robert Flores, vice president of the NaVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
18

tional Law Center, and we are now going to hear from Tracy Stewart, the head of technology, FamilyClick.com. Again, our admonition is to please adhere to the 5-minute rule. Ms. Stewart, you are

recognized.

STATEMENT OF TRACEY R. STEWART

Ms. STEWART. Good morning, Mr. Chairman and members of the

subcommittee. My name is Tracy Stewart, head of technology for

FamilyClick, a nationwide filtered Internet service provider and

family oriented Web site. The role of our company is to provide for

families that have freely chosen filtered access to a safe Internet

experience.

Filtering used to be easy, but due to the bold and aggressive

marketing by the porn industry of their product, very sophisticated

software and hardware is now required to do our job. I will quickly

discuss several techniques used by the porn industry which causes

technological challenges for filter companies and makes it virtually

impossible to guarantee a safe online experience. I will provide

complete details of the techniques in my written testimony.

Spam. Mail addresses are harvested by bulk e-mail and from

many places on the Internet: chat rooms, message boards,

auctionsites such as eBay. Book mailing lists are inexpensive for

the pornographers to purchase. The goal of the pornographer is to

send out millions of unsolicited messages containing, for example,

a sample image and link to a porn site. They know most will not

generate a positive response, but due to the sheer volume of mail

sent, they will pick up some customers. A 10-year-old boy is just

as likely to get the unsolicited porn message as a 40-year-old man.

Over 30 percent of unsolicited e-mail contains pornographic information.

Banner ads. Many legitimate Web sites that would not be

blocked by filters carry banner ads to porn sites. Also, once on a

porn site, it may contain dozens of ads to other porn sites. Porn

sites have developed an almost unbroken circle of links between

each others’ sites which maximizes their profitability and traffic.

Once on a porn site you have access to dozens, if not hundreds, of

other porn sites.

Innocent or innocuous or misspelled domain names. These porn

Web masters have registered many innocent sounding names that

you would not expect you would need to filter: Boys.com, girls.com,

coffee bean supply.com, BookstoreUSA.com, and the infamous

WhiteHouse.com. These all lead to very explicit and graphic porn

sites. Also legitimate companies which spend millions of dollars

building brand names, porn Web masters commonly register misspelling of these brand names. For example, my favorite is

Yaawhoo.com, takes you to a porn site.

Suggestive or graphic exit consoles. Once you stumble into a porn

site, leaving may not be easy. Normally you would just hit the back

button on your browser, but many porn sites force you to continue

to look at what they have to offer by opening new windows each

time you close a window, and each one has an image or invitation

to preview or join. Each window you close opens up another new

window. They are hoping you will find something you like while

you are trying to exit. Sometimes these windows completely lock up

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your PC and system resources, forcing you to reboot and maybe

lose any unsaved information you had.

The final one is search engine manipulation. Meta tags are short

descriptive comments placed in a Web page. They are not displayed

when you view a page. They are placed there by the programmers

and developers of the Web page. Many search engines use these

meta tags to categorize a Web site. There are no rules that say a

meta tag description has to match the content on the site. Porn

sites often use common search terms such as brand names in their

meta tags to get higher placement or recognition within the search

engines. A porn site can have a meta tag of family friendly, safe

ISP if they want.

How can our users protect themselves? First of all, you cannot

use the Internet, which is really not an option in today’s society,

or you can use a service that offers a whitelist, which is a very restrictive list of preapproved sites really only appropriate for small

children. Filters installed on home computers put the responsibilities completely on the parent to maintain the software and the

subscription to a filtering list.

Then there is service site filtering where all the filtering lists

and software resides outside the home. The burden is removed

from the parent but it is up to the technology industry to keep up

with what the pornographers are doing. Families bring filters into

their home to protect, not to censor, their family. They also expect

them to work 100 percent of the time. Believe me, I have found

that out.

The aggressiveness of the pornographers present a technological

challenge that we, the filtering companies, are constantly trying to

keep up with. Our goal is to provide the safest possible experience

for our customers while online.

This concludes my statement.

[The prepared statement of Tracy R. Stewart follows:]

PREPARED STATEMENT OF TRACY R. STEWART, HEAD OF TECHNOLOGY,

FAMILYCLICK.COM LLC

Mr. Chairman, members of the committee, I am Tracy Stewart, Head of Technology at FamilyClick.com LLC; a nationwide filtered Internet service provider

based in Virginia Beach, VA. I would like to thank you for the opportunity to speak

with you today concerning a subject that I, my co-workers, and family and friends

have spent a great amount of time dealing with. That is the growing influence that

the online pornography industry has on this wonderful new learning tool that we

know as the Internet.

Background

Almost everybody realizes that pornographic web sites are out there. The sex

trade is arguably the world’s oldest profession and has long been one of the most

profitable. Its influence has been felt within every culture since the beginning of recorded history and it should come as no surprise that the porn industry has established a strong foothold in cyberspace. Pornography was the first consistently successful e-commerce product and the online porn industry is credited with pioneering

many of the security, electronic payment, advertising and site management techniques that are used today by mainstream web site operators.

Many believe that the online porn industry operates in a niche; hidden away in

a back room and visible only to those who come looking for it. In reality, nothing

could be further from the truth. Free of the restrictions that pornographers in the

print, film and paraphernalia industries face, the online pornographer has become

very bold and aggressive when it comes to marketing his product. He is willing to

force his message to be viewed by thousands, even millions, of unsuspecting persons,

both young and old, because he knows that some of these people, perhaps only a

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few, will eventually become his customers. He is willing to trick you into visiting

his site when you are really looking for something completely different because he

knows there is a slight chance that you will like what he has to offer. And he is

willing to hold you hostage when you stumble through his door because he knows

that you might just give in after your first attempts at escape fail.

As a businessman, the online pornographer has the same goals that any legitimate businessman has: profits. But without the legal, social and moral restrictions

to hold him back, the online pornographer has aggressively and ruthlessly marketed

his product and now ranks third in total sales on the Internet; trailing only computer products and travel.

Formula For Web Site Success: Traffic = $$

One of the first goals of any web site operator, whether the site is ‘‘legitimate’’

or pornographic, is to generate traffic or ‘‘hits’’ to that site. Without hits, the commercial electronic storefront will not have any customers and the free portal will

not have many ad impressions. With over four thousand new web sites coming online every day, generating traffic is a much more difficult task than it appears on

the surface. Competition for traffic is fierce and even with the advent of faster networks, more efficient software and swifter computers, users only have so many

hours in a day in which to explore the web. The site that adheres to the ‘‘If I build

it, they will come’’ principle is doomed to fail.

Pornographic web site operators have been pioneers in the field of web site traffic

generation and have come up with some very imaginative, and often aggressive,

methods of driving traffic to their sites. In fact, many of the techniques currently

used by legitimate sites to increase traffic were first implemented and perfected by

pornographic web sites.

What the Porn Industry is Up To

Pornographic web site operators have been so successful in generating traffic for

their web sites that it is now virtually impossible to spend any significant amount

of time surfing the web without stumbling across pornographic or otherwise offensive web sites. In fact, it has now become a challenge to get through an online session without encountering lewd, vulgar or risque ́ sites. Increasingly, the expectation

of many adults and most teen aged web surfers is that they will encounter at least

one inappropriate web site during a typical online session. And for those that are

looking for online porn, it’s only a mouse click away.

Lacking the fear of prosecution, pornographic web site operators have perfected

methods of generating traffic to their sites that are often as offensive and immoral

as the material they are attempting to promote. Employing methods meant to deceive, lure, tease, trick and capture, new porn web sites can expect a steady flow

of traffic in a fraction of the time that it takes a legitimate web site to generate

the same amount of traffic.

Spam—One of the earliest and most time-honored methods of increasing exposure

and generating traffic for a porn site is spam; the sending of thousands, or even millions, of unsolicited email messages or Usenet postings. It is estimated that over

30% of all unsolicited email messages are pornographic in nature. In many Usenet

newsgroups, close to 100% of the postings are advertisements for a pornographic

web site. These messages and postings often include an attached binary image intended to serve as a ‘‘free’’ sample of what’s available on the main web site.

Spamming is, perhaps, one of the easiest known methods of web site promotion.

The creation of mailing lists for the purpose of unsolicited bulk mailings has grown

into a healthy cottage industry. Bulk emailers harvest email addresses from Usenet

postings, message boards, auction sites such as www.ebay.com and www.bid.com

and from less than reputable bulk email ‘‘opt out’’ or ‘‘unsubscribe’’ services. These

mailing lists cost pennies to generate and are easily affordable by web site operators

with the most modest of budgets. Bulk mailing and posting software is also very

affordable and easy to setup and operate. To add insult to injury, the messages are

usually delivered to the victims by ‘‘borrowing’’ the services of an unsuspecting third

party that installed an email server and forgot to turn off third-party mail relay.

The spammer then delivers his message to thousands, or even millions, of people

who did not ask to receive it and uses the networking and computing resources of

an innocent bystander to do all the grunt work.

Bulk emailers do not lose a lot of sleep worrying about targeting their mailings.

Since they are paying next to nothing to send their messages out, they are more

concerned with volume than they are with hitting a particular target audience. A

ten year old boy is just as likely to receive an email message explaining the virtues

of the latest weight loss plan as he is a message exhorting him to visit Bambi’s

Naughty Playground. He may not actually visit the site but the free sample picture

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of Bambi cavorting with her friends won’t be easily erased from his impressionable

mind. Bulk mailers expect that the vast majority of their messages will not generate

a positive response. All they are looking for is a handful of adults with credit cards

handy so they can recoup their small investment.

Banner Ads—By now, everyone who has spent any time on the web has seen banner ads. Many of the worlds most visited web sites derive all or a major portion

of their income by displaying these ads. These click-through images that bring the

surfer to other sites translate to real traffic and money. But it was the online porn

industry that originated and perfected the use of the banner ad. Today, the online

porn industry continues to pioneer new and often revolutionary methods of using

online banner ads.

Go to almost any adult web site and you will see, prominently displayed, dozens

of ads linking to other pornographic web sites. By any definition, these are ads for

competitive sites. While General Motors might not be willing to place a link to a

Chrysler web site on its page, such an arrangement is not only common in the online porn industry, it is expected. All a surfer needs to do is wind up on a single

adult web site, which is very easy to do, and he’s got easy access to dozens, if not

hundreds, of additional sites. While you would not expect Macy’s to send you to

Nordstroms’’ web site if they don’t have the pair of shoes you want, you can expect

a porn site specializing in blonde’s to direct you to a site featuring redheads if that’s what you prefer. The almost unbroken circle of links developed by the online porn

industry has proven very effective at maximizing profitability and traffic.

Porn sites have gone beyond the easily abused pay-per-click payment system,

which is commonly used by legitimate web site operators. Arrangements to pay the

referring partner a flat fee or a percentage of the first sale are becoming prevalent.

Often there is no money involved and deals are consummated over a drink and a

handshake. This cooperation is more than a traffic and revenue generating technique in the online porn industry; it is interwoven into the very fabric of the industry.

Banner ads for pornographic web sites don’t appear only on other porn sites. Legitimate sites, hungry for the dollars paid out by porn operators, often eagerly place

these ads on their own sites. Porn ads placed on legitimate sites are normally less

graphic and suggestive than the ads that porn operators share with each other. But

the sites that these ‘‘clean’’ ads lead to are every bit as offensive as the sites advertised by the more graphic ads.

Innocent or innocuous domain names—It often is not very difficult to determine

the address for a particular web site. For example, FamilyClick’s web site is at

www.familyclick.com and the web site of the National Football League is at

www.nfl.com. Many users can derive these site names without the need to resort

to search engines or web directories. Most experienced users try obvious domain

names directly. But that doesn’t always yield the expected results.

Consider ‘‘Teenagers Hideout’’. Seen in a TV listing, one could safely assume that

Teenagers Hideout was a new addition to the Nickelodeon Television lineup. At

Barnes and Noble, it could easily be the title of the latest installment in the

Goosebumps series. A parent who’s teenage daughter wanted to watch ‘‘Teenagers

Hideout’’ on Nickelodeon or buy the ‘‘Teenagers Hideout’’ paperback at the local

mall probably wouldn’t feel alarmed. But there is no such presumption of safety in

cyberspace. The web site www.teenagershideout.com redirects the surfer to the

PrivateTeens.com porn site.

Unencumbered by ratings systems or V-Chips, porn webmasters have registered

many innocuous or innocent sounding domain names for their sites. Boys.com,

teens.com, coffeebeansupply.com and bookstoreusa.com all lead to very explicit and

graphic porn sites. While legitimate web site operators strive to come up with domain names that are meaningful and descriptive, porn webmasters just try to cover

as many bases as they possibly can. The legitimate webmaster wants you to visit

his site when you are looking for the types of goods or services that he offers. The

porn webmaster wants your traffic regardless of your reason for being on the net.

Misspelled Domain Names—With domain names being sold for hundreds of thousands, and even millions, of dollars, it is perhaps not surprising that the porn industry should try to take advantage of the goodwill and trust that legitimate companies

have spent years building. For example, the creators of Yahoo! probably never imagined that a site dedicated to nude photos of Britney Spears would be parked at

www.yaahwho.com. The Internet is full of sites that can be accessed by using a common misspelling of a popular web site. Not surprisingly, most of these misspelled

web sites are pornographic in nature.

Porn site operators have become experts at taking advantage of some of the more

common and predictable mistakes that people make. If a student just introduced to

keyboarding places his or her hands on the wrong keys, chances are a pornographer

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has it covered. How about the middle school student doing research on the President

of the United States and goes to www.whitehouse.com instead of www.white

house.gov? The porn industry has taken care of that common error. And if you’re

looking online for information about Disney, check your spelling carefully because

www.dinsey.com and www.dinseyland.com won’t get you to the Magic Kingdom.

Suggestive or graphic exit consoles—Once an innocent surfer stumbles across a

porn site, all the work getting him there will be lost unless they take some steps

to keep him from leaving. Porn webmasters have become experts at building one

way doors leading to the Internet’s Red Light district. Did you end up at a site that

you didn’t intend to visit? It is normally not a problem; just hit the back button or

close your browser window and you’re right back where you started from. But if the

site that you accidentally ended up at happens to be a porn site, you may not be

able to check out as easily as you checked in. Hitting the back button or closing

the browser window commonly results in the opening of one or more ’exit consoles’;

each a new browser window showing you a site of the webmasters choosing. Many

of these exit consoles are at least suggestive; if not graphic. Many feature ‘‘free preview’’ buttons that lead to the creation of still more browser windows.

An example is the web site www.highsociety.com which bills itself as ‘‘The All Sex

and Celebrity Web Site’’. The initial page displays a warning about ‘‘explicit adult

content to date banned from the U.S.’’ and it admonishes the viewer that he or she

MUST be 18 to enter. But, 18 or not, at this point you’ve already had an eyeful,

you’re already in and you can’t easily leave. Clicking the back button causes another

browser window to pop up; this one features the ‘‘Lust Highway’’ site. Close the Lust

Highway window and it is quickly replaced by the Chateau deSade site which features ‘‘Hardcore Sado-Masochism’’. That is followed by visits to sites offering ‘‘Free

Porn and Screensavers’’, ‘‘The Youngest Girls Allowed by Law’’ and a site ‘‘Where

All Your Sexual Fantasies Come Alive’’. All together, the surfer leaves the High Society site by way of 13 sexually explicit and graphic porn sites. Each site features

a graphic image on its front page and each gladly accepts credit cards.

The ‘‘Thirteen Steps Through Paradise’’ exit route employed by High Society is actually one of the easier and less obtrusive exit plans used by the porn industry. The

thirteen windows used to leave High Society open up one after the other with the

closing of each window leading to the birth of exactly one successor. Other sites employ as many as 23 new browser windows. Often a porn sites exit plan will involve

the creation of a dozen or more exit consoles, all starting up at the same time and

competing for the systems resources. New windows are created as fast as the user

can close them. In many cases, this causes the system to lock up forcing a reboot;

often resulting in the loss of unsaved work.

The damage often goes beyond the lost work and the possible harm caused by rebooting your system. As pages and images are downloaded from the net, they are

cached onto your systems hard drive. This speeds up access during subsequent visits

to a web site as the information stored on the hard drive can be displayed if the

information on the site itself hasn’t changed. Since the cache contains pages and images from sites that you’ve intentionally visited as well as those that you ended up

at by accident, any person with access to the computer can view these images without even being online. Many users do not even realize that these images are there

and would be appalled to learn that such material actually resides in their home.

The porn industry takes advantage of a technique known as Javascript Slamming

to make this happen. Using onLoad and onUnload methods, they can open new windows upon entry to or exit from a site. The onUnload method is particularly iniquitous in that there is no escape. It’s possible to turn off the execution of Java entirely

from within the browser. Unfortunately, doing so blocks about 50% of the good content available on the net. Browsers, such as Opera, can be configured to never open

new windows. Again, disabling this feature is equivalent to disabling much of what

is available on the Internet. Not going to porn sites is one way of avoiding the exit

console syndrome. But since many porn site visits are the result of an accidental

wrong turn in cyberspace, avoidance isn’t a very effective treatment for the problem.

And many non-porn sites, particularly sites dealing with online gambling, have

learned from the porn webmasters and adopted the Javascript Slamming technique

for their own purposes.

Manipulating Search Engines—Most web site operators, legitimate and otherwise,

spend a great deal of time trying to describe their site by means of meta tags. Meta

tags are short descriptive comments placed within the body of a web page. Not readily visible using most browsers, meta tags contain the keywords and descriptions

used by search engines to categorize web sites. Using FamilyClick as an example,

the keywords chosen were those that accurately describe the content offered on our

site and the filtered ISP service offered.

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Unfortunately, there is no rule that requires that a keyword placed in a meta tag

has to accurately describe the site. The porn site www.girls.com uses teens as a keyword as does FamilyClick. So a surfer looking for information related to teens would

be just as likely to find www.girls.com as he would www.familyclick.com. While

mainstream web sites strive to use descriptive keywords, porn web site operators

use whatever the search engines are currently indexing. By posting hundreds of test

pages, porn operators can readily determine what the major search engines are looking for. They then load up their sites with meta tags this month, titles the next,

and meta descriptions the month after that. Many of these sites are temporary portal sites customized for a particular search engine. These portal sites contain nothing more than the information that the search engines want along with a redirect

to the actual site. Since the porn webmasters are so good at generating traffic, when

a portal site has outlived its usefulness, it is quickly replaced with another.

And when it comes to spamming, the porn industry does not stop with email and

Usenet. They routinely spam the search engines by submitting every page and

subpage that makes up their site, as well as hundreds of throwaway portal sites.

Since the search engines will eventually detect this spamming, porn operators are

careful not to use their actual site. They use phony portal sites that can be replaced

without any trouble.

Usenet—Before there was a World Wide Web, there was Usenet, commonly referred to as newsgroups. Originally intended as a huge worldwide bulletin board

where users could discuss a wide variety of topics, Usenet has grown into a system

where users can share not just thoughts and ideas but files. Not surprisingly, an

increasing percentage of these files are erotic images, videos and sound clips. Of the

almost 36,000 groups carried by one major provider, almost 600 are described as

having content related to sex and another 500 carry content which is erotic in nature. There are newsgroups specializing in various fetishes; groups specializing in

bestiality; groups that focus on various parts of the body and, for material that just

doesn’t fit anywhere else, groups that desire tasteless pictures and stories. The trick

of misspelling domain names probably originated with Usenet; the group

alt.binaries.pictures.boys.barefoot carries images of young boys with nothing on

their feet. Not surprisingly, it isn’t only shoes that some of these boys are going

without. Many of the 12,000 or so groups in the alt hierarchy are almost exclusively

dominated by material that is sexual in nature.

As an open system, anybody can post almost anything to any Usenet group. While

the posting of a message related to British soccer may not be welcome in a group

devoted to the breeding of tropical fish, it’s difficult to prevent off-topic posting. A

user looking through a Usenet group intended for web browser discussions is just

as likely to come across a nude image of a young actress, as he is information on

the latest Microsoft Explorer bug. The pornographers are well aware of this fact and

they habitually flood almost every newsgroup with free samples and other enticements to visit their web sites. This has gone far beyond spam, as many groups now

carry nothing but invitations to come visit various web sites. Using high throughput

systems, porn operators pump out gigabytes of graphic content.

Besides serving as a method of increasing hits to a site, Usenet is also a rich

mother lode of content for the porn webmasters. Usenet is full of images, videos,

stories, jokes and other material. Much of this is posted by amateur photographers

and videographers and consists of pictures of wives and husbands, girlfriends and

boyfriends, the girl or guy next door, couples, trios, dogs, cats, hamsters as well as

all sorts of inanimate objects. With the introduction of affordable digital cameras,

scanners and web cams, the amount of material waiting to be harvested by a porn

webmaster is increasing everyday.

Avoiding the Net’s Dark Side

The most sure-fire method of avoiding the seedy part of the net is to stay off the

net altogether. If your computer isn’t hooked up to the net, the only way that porn

can work its way into your system is if someone carries it in on a diskette. But staying completely off the net denies access to a powerful learning and entertainment

tool. There are methods of taking advantage of what the net has to offer while still

offering your family some measure of protection from the aggressive online pornographers.

Whitelists—A whitelist is simply a list of pre-approved web sites that have been

checked and determined to be safe. Some Internet Service Providers offer a service

that restricts its users from going to any site not listed on its whitelist. Current

database technology allows whitelists to be quite large and can be updated and

searched in almost real time.

But with over four thousand new web sites coming online everyday, maintaining

a whitelist and keeping it up to date is a major challenge. Since it’s already known

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that the name of a site is not necessarily indicative of its contents, each site needs

to be manually visited in order to determine if it should be included on a whitelist

or not. And since the contents of a site may change over time and domain names

are often sold, each site on the list needs to be revisited periodically to ensure that

it still merits inclusion in the list. However, as long as the whitelist is properly

maintained, it is a very effective method of protection.

Due to these challenges, whitelists are only appropriate in limited numbers of

cases. The most common application of a whitelist is to ensure safe Internet access

for small children. FamilyClick offers, as one of its access levels, access to a preapproved list of sites which have been determined to be appropriate for children

seven and under. The FamilyClick Children’s Playroom is 100% safe but would not

be appropriate for an experienced user who may need to use the web for research.

Local Filtering—A local filter is a software program, installed on a users computer, that monitors a users Internet activity and decides whether to allow that activity or not. The filters normally compare web addresses, email addresses and

Usenet group names against a list of blocked addresses. If the address does not appear on the list, access to that resource is permitted. Some local filters utilize word

lists as well as address lists.

Local filters have many of the same problems that whitelists have and are usually

much less effective at blocking inappropriate material. Lists need to be maintained

and the sheer volume of new web sites being launched means that new porn sites

might not be listed for weeks or months. Often users are required to maintain a

subscription in order to ensure that the list is kept up to date.

The main problem with local filters is that they are installed on a users computer.

Many parents purchase copies of filtering software only to hand it to a tech savvy

teenager to be installed. Although some local filters are password protected, they

can be defeated either by removing them entirely or by renaming a few files.

Proxy Filtering—The most effective filter is a filter that resides on a server outside of the home. Often known as a server based filter, the proxy filter operates by

intercepting all requests from a user and then deciding whether to pass the request

on or not. Proxy filters utilize lists of blocked sites as well as word lists. Server

based filters can take advantage of the latest database technology to maintain lists

of blocked sites and banned words. The most advanced proxy filters scan outgoing

web requests and incoming web pages and perform context searches rather than

simple word searches. This provides protection against sites too new to have been

catalogued.

Proxy filters are commonly used in businesses and educational institutions where

the network administrator can force the traffic to flow through the filter as it travels to and from the users. In this type of setup, a proxy filter is very difficult, if

not impossible, to defeat. Users can either access the net through the proxy filter

or not at all.

Increasingly, filtered Internet Service Providers are utilizing proxy filters to protect their subscribers from unwanted pornography. Several, such as FamilyClick,

utilize various levels or tiers of filtering. This allows parents to decide the level of

access that is appropriate for each of their children. FamilyClick and other top providers force all the network traffic from subscribers to flow directly through their

proxy filters. A tech savvy teen that attempts to bypass the proxy filters finds that

network traffic not directed to the proxy filters falls into a black hole.

Usenet and Other Parts of The Net—The Internet is far more than just the World

Wide Web. Cyberspace includes Usenet, Electronic Mail, Chat and Instant Messaging, Bulletin Boards and multi-player gaming. And just like the web, the pornographers have a foothold in every corner of the net. Many filters deal only with web

traffic and, while some email providers such as FamilyClick include profanity and

obscenity filters for email and Usenet, other services available on the Internet are

currently unfiltered like Instant Messaging.

Providers deal with these unfiltered services by not offering them at all, offering

only a portion of the service or by issuing strong warnings to subscribers who choose

to use these services. Usenet, for example, can be made semi-safe by screening out

all but a few select newsgroups and by dropping all binaries. Electronic mail can

be sanitized by comparing incoming messages against addresses of known

spammers and pornographers and by scanning messages for telltale signs of porn

and spam.

Staying Ahead of The Good Guys

As the masters of a billion-dollar enterprise, the porn web operators have every

reason to want to defeat any technology that threatens to weaken their empire. For

every step forward that the guys in the white hats take, the online porn industry

takes two. Where once a simple word filter would suffice, it now takes sophisticated

25

software that can determine the context of a sentence or paragraph. Text messages

that were at one time expressed in ASCII are now embedded in images that are

impractical to scan. Porn site operators know who their enemies are and they are

usually among the first to purchase and test new filters that come on the market.

By the time a new filter gains widespread acceptance, the porn operators have developed methods of getting around the filters.

The technology that drives the Internet is advancing at breakneck speed and no

industry is pushing this advancement more than the porn industry. Many of the

first people to communicate with each other on the net talked about sex using a

bulletin board devoted to erotic discussions. Pornographers were among the first to

incorporate streaming video and pioneered the use of community software such as

chat rooms and message boards. Each of these advancements has posed a new challenge to those that seek to identify and screen out unwanted material. The porn industry today is perfecting new technology and techniques that will make current filters obsolete. The porn industry is starting to incorporate 360-degree video and

when digital scent technology is perfected, it will be the porn industry that first

brings the sense of smell to your home computer. Filter writers that started with

a simple list of four letter words now face the challenge of identifying and filtering

different scents, sounds, textures, expressions and colors. The college graduate who

wishes to push the state of the art would do well to seek a position in the online

porn industry.

Because of the speed with which a porn master can drive traffic to a new site,

web addresses that appear on blacklists are quickly replaced with new addresses.

Many filters do not track the IP addresses of sites so porn operators often distribute

addresses in the form http://209.25.138.4/new/open/open1.html. Such addresses contain no strings that might trigger a filter and the address normally leads to a site

that will simply redirect the user to the existing, blocked site. These numeric sites

are generally throwaway sites that are only intended to last for a few days. By the

time these sites are listed by the major filters, new sites have replaced them.

Javascript Slamming is also frequently effective at defeating filters. Even if a filter blocks the first page, it may not block the rest. The porn operator who sends

you through a dozen or more sites stands a good chance that at least one of those

sites can pass through the filter.

Porn operators are also adept at hiding behind the first amendment. With cries

of censorship, porn operators throw up many legal obstacles to the developers and

providers of filtering services. Despite the obvious fact that participation in a filtered service is something that people elect, the porn operators have much support

from free speech advocates who are quick to denounce this ’censorship’ of the Internet. Many of these supporters maintain web sites such as www.peacefire.org that

make available information on how to defeat various filters. Usenet groups such as

alt.cracks contain information on how one might workaround the security features

of various software packages including filters. Like all software, filters have flaws

and the opponents of filtering are quick to point out that filters have mistakenly

blocked sites such as the Quakers home page and the AIDS Memorial Quilt. They

are usually not so quick to tell you when the filters are fixed.

Also in the name of free speech and privacy, web sites known as anonymizers

have sprung up. These sites allow you to surf the web anonymously by accessing

other sites on your behalf; acting as an intermediary between you and a filter. Most

filters now block the anonymizers but new anonymous surfing sites are being

launched about as fast as the filters can find them.

Even the best filters can’t be expected to be 100% effective. Filters sometimes

block sites that shouldn’t be blocked. Likewise, the occasional inappropriate site

sometimes slips through even the best filters. But most providers of filtered access

are quick to investigate and correct any errors that are brought to their attention.

Providers such as FamilyClick form a partnership with their subscribers; realizing

that the most effective way to ensure safe access to the Internet is to work together.

Subscribers are encouraged to suggest sites that should or should not be blocked

and suggestions on how to improve the service are gladly accepted.

People who invest in the protection of a filter expect that filter to work 100% of

the time. Unfortunately, that isn’t currently possible. The online porn industry is

able to deploy resources that the good guys can only dream about. The porn industry operates in an environment of cooperation and trust unheard of in other industries. While traditional technology companies zealously guard trade secrets, the porn

industry willingly shares these tricks of the trade with each other.

Conclusions

Pornography is a part of society and probably always will be. But, away from

cyberspace, one normally needs to seek it out in order to access it. Erotic magazines

26

and books exist but they are behind the counter. You need to ask for them. Pornographic videos exist and many video stores carry them. But they are in a back room;

often protected by a locked door. Many cable television and satellite providers carry

adult movies. But they are accessed via Pay-Per-View; they normally cost more than

mainstream movies and they often require a PIN number to view. Your town may

have a sex shop or X-rated theater but it’s probably not next door or across the

street. More than likely it is somewhere else in town along with all the other sex

shops in a Red Light District. Although movies, television shows, video games and

literature are becoming more and more suggestive, to access real porn you need to

go out of your way to get it.

But not on the Internet. Away from the net, you normally need to look for porn.

In cyberspace, it looks for you. On the net, pornography isn’t behind the counter and

it’s not in a locked room. It isn’t secured by a PIN number or access code and it’s

not on the other side of town. It’s in your neighborhood, it’s in your schools and it’s

across the street.

It’s in your home.

Many families have brought filters into their homes, not to censor, but to protect

their families from people and influences they would never allow through their front

door. They rely on and expect these filters to work and protect them. The technological aggressiveness of the porn industry makes it very difficult to give families,

that have opted to utilize filtering, a guaranteed safe Internet experience. Currently,

technology is the only deterrent to accessing pornography on the Internet and it is

always a step or two behind the latest techniques developed by the porn industry

to drive traffic to their web sites. The role of FamilyClick and other providers of

filtered access, is to provide the families, that have freely chosen filtered access, the

safest possible experience while on the Internet.

Thank you for giving me the opportunity to discuss this important matter with

you today. FamilyClick is prepared to work with the committee on this issue and

I will gladly answer any questions you may have.

Mr. TAUZIN. Thank you, Ms. Stewart.

We will next hear from Janet LaRue, senior director of legal

studies, Family Research Council, here in Washington, D.C. Ms.

LaRue.

STATEMENT OF JANET M. LaRUE

Ms. LARUE. Thank you, Mr. Chairman, members of the subcommittee. Good morning. I am Janet LaRue and I am senior director of legal studies at the Family Research Council. Pornography

law has been an area of expertise in my practice for many years.

As you know, obscenity is not protected by the Constitution because, by definition, it is patently offensive appeal to a prurient interest in sex and has no serious value. It is illegal to display or distribute to any person through any medium, including the Internet.

The Supreme Court has reiterated that. It is the crass commercial

exploitation of sex by a worldwide industry now estimated by

Forbes magazine at $56 billion per year. Much of this is controlled

by organized crime. This is an industry that exploits the basest nature of human beings, including those who are most vulnerable to

addiction, especially children.

Minor children are no exception. If anyone doubts that, I would

encourage you to visit the commercial pornography sites on the

World Wide Web and see the plethora of free teaser images that

are there, available for any child to view. In fact, I have with me

today some photocopies of images that I just downloaded from the

Internet, and Mr. Chairman, I would submit them for the record.

Mr. TAUZIN. The Chair will withhold on that request if you don’t

mind.

Ms. LARUE. These images include bestiality, mutilation, torture,

excretory functions, orgies and other perversions. Internet pornogVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
27

raphy is estimated by Forbes magazine at $1.5 million per year at

this current time. According to Adult video News which is the online publication for the porn industry, ‘‘48 million unique hits on

the adult Net daily.’’ Forty-eight million daily. According to Nielsen

net ratings, 17.5 million surfers visited porn sites from their homes

in January, a 40 percent increase compared with 4 months earlier.

Forty percent increase.

Researchers from Stanford and Duquesne University have now

estimated that we have 200,000 individuals in this country that

they define as cybersex compulsives, and I believe they have set

the bar very high. To be a cybersex compulsive, one must visit a

pornography Internet site at least, at least 11 hours per week.

They said that this is a hidden public health hazard, exploding in

part because very few are recognizing it as such or taking it seriously. Treating a new public health problem of this magnitude will

place inestimable burdens on our health care system and unimaginable stress on adults, their families and society.

For several years, Family Research Council has been calling on

the Department of Justice to begin an aggressive enforcement policy against major obscenity distributors. On October 28, 1999, I

was one of several representatives of several profamily organizations who met with the head of the criminal division of the Department of Justice, Mr. James Robinson, and representatives from

other Federal agencies who have responsibilities for obscenity investigations and prosecutions. Once again we voiced our concerns

and complaints about the lack of prosecution. I personally provided

Mr. Robinson with a stack of materials, photocopies of commercial

porn sites that especially target teenagers. These hard-core images

easily meet the definition of obscenity under Miller versus California.

The response from Mr. Robinson in his follow-up letter to our

group was unacceptable and frustrating because nothing has

changed.

In addition, the accessibility of hard-core porn on the Internet is

turning America’s public libraries into virtual peep shows open to

children and funded by taxpayers. I have with me a publication recently released by the Family Research Council, called Dangerous

Access, 2000 edition, uncovering Internet pornography in America’s

libraries. This is a result of Freedom of Information Act requests

that were mailed to over 9,700 of America’s public library systems,

asking for any reports, complaints, or other memoranda having to

do with patrons in public libraries accessing pornography. After 6

months of going through those reports and compiling the result, we

have published it in this document. We show by libraries’ own

records over 2,000 incidents of patrons, including small children,

accessing pornography; sex acts occurring in public libraries; sex

crimes occurring in public libraries. We have mailed a courtesy

copy to every Member of Congress, and I would offer a copy for

submission into this record.

Mr. TAUZIN. The gentlelady again, we will withhold on that request, and we are asking counsel to advise us frankly, Ms. LaRue,

as to what is the legality of introducing material into the record

that may itself constitute obscenity, and realizing you want to

make a point by showing us what you can download from the InterVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
28

net, but if you can withhold on those requests until we get an answer I would appreciate it.

Ms. LARUE. My point is to make the committee aware of the

kinds of material we called to the attention of the Department of

Justice that is rampant on the Internet, to which they said they

would consider prosecution. As yet we have not heard of any.

Mr. TAUZIN. I think your report, without objection, will be introduced into the record. So ordered. I am simply asking that you

withhold on the request. In fact, I would personally ask you not to

make the request so we don’t have the issue. I don’t know the legality of putting in the record material that may in fact be obscene

and having a record that may be duplicated or copied for the purposes of the public later on, as to whether or not we ourselves

would be doing something which might violate the law. And I

would frankly request that you not request us to introduce the earlier material into the record. Can I have that agreement perhaps?

Ms. LARUE. I would abide by your request. I would say that I did

offer a similar stack of material to another House subcommittee,

which was accepted, and I assume that——

Mr. TAUZIN. We may be able to do that. I would just simply ask

you to withdraw it for the time being until we have a chance to

get an answer for that from legal counsel. I thank you. You may

proceed.

Ms. LARUE. Yes. Computerized cyberporn is a source of potential

legal liability for the creation of a hostile work environment and

specifically in violation of Title 7 of the Federal law. As a matter

of fact, seven librarians in Minneapolis, Minnesota have recently

filed a sexual harassment, hostile work environment complaint

with the Equal Opportunity Commission. The complaint cites conditions in the library where sex offenders congregate 6-year-olds to

view hard-core porn, men masturbate, and a porn surfer brandishes a knife when told to terminate his Internet access. These

are conditions one would expect to find in a dirty bookstore, except

for the presence of 6-year-olds viewing hard-core pornography.

Month after month for the past 7 years, Adult Video News has

praised the Clinton Justice Department for not enforcing the Federal obscenity laws. The March issue states: ‘‘how likely is it, would

you say, that we are going to enjoy the same benevolent neglect

that the industry has enjoyed under Janet Reno? Regardless of who

is elected, our fortunes are going to change.’’

I would close by asking the members of this subcommittee to consider that if a major drug cartel had a monthly publication in

which they praised the Drug Enforcement Agency for not enforcing

the Federal drug laws, how long would the people of this country

or this Congress tolerate such conduct? I suggest that it would not

be tolerated and especially for 7 years.

The Department of Justice refuses to enforce an entire body of

the Federal Criminal Code that prohibits the trafficking in obscene

materials. It must be called to account and be held responsible.

Thank you.

[The prepared statement of Janet M. LaRue follows:]

29

1 Richard C. Morais, Porn Goes Public, Forbes, June 14, 1999. 2http://www.forbesfinder.com/forbessearch/

search.asp?act.search=1&q1=porn+business&RD=DM&MT=porn+, visited April 10, 2000. 3http://www.avonline.com/200003/corecontents/cc0300—01.shtml, visited April 11, 2000. 4 Brendan I. Koerner, A Lust for Profits, U.S. News & World Report, Mar. 27, 2000, at 36. 5 Al Cooper, David L. Delmonico, Ron Burg, Cybersex Users, Abusers, and Compulsives: New

Findings and Implications, Journal of Sexual Addiction & Compulsivity 25, 7:5-29, 2000.

PREPARED STATEMENT OF JANET M. LARUE, SENIOR DIRECTOR OF LEGAL STUDIES,

FAMILY RESEARCH COUNCIL

Mr. Chairman, members of the Subcommittee, good morning. My name is Janet

M. LaRue. I am senior director of legal studies for the Family Research Council

(FRC) in Washington, D.C. Thank you for the opportunity to testify today regarding

the problem of obscene material available on the Internet.

Pornography law has been my area of expertise for many years. I have lectured

on the subject in numerous law enforcement conferences across the country, testified

before state and local legislatures on pornography bills, and authored numerous appellate briefs that have been filed in the U.S. Supreme Court, federal circuit courts

of appeal, and state appellate courts on various pornography law issues. The protection of children, families, and society in general from the serious harms of pornography, and especially obscene materials, is a top priority of FRC and of my department, in particular.

As you know, obscenity is not protected by the Constitution because, by definition,

it is a patently offensive appeal to a prurient interest in sex and has no serious literary, artistic, political, or scientific value. It is illegal to display or distribute to any

person, including adults. It is the crass commercial exploitation of sex by a worldwide industry now estimated at $56 billion dollars per year,1 much of which is controlled by organized crime. This is an industry that exploits the lowest part of

human nature and plays on those vulnerable to addiction in order to attract a new

generation of customers. Minor children are no exception. Anyone who doubts that

need only visit the commercial World Wide Web porn sites that flagrantly display

scores of free teaser images of their product. These images include bestiality, mutilation, torture, excretory functions, orgies, and other perversions. I have copies of

sample materials with me today that I offer for submission into the record. Internet

pornography is estimated at $1.5 billion per year.2 According to Adult Video News

Online, there are ‘‘48 million unique hits on the adult Net daily.’’ 3 ‘‘According to

Nielsen NetRatings, 17.5 million surfers visited porn sites from their homes in January, a 40 percent increase compared with four months earlier.’’ 4

Researchers from Stanford and Duquesne University have estimated that 200,000

individuals fit the definition of ‘‘cybersex compulsive’’-spending at least 11 hours a

week visiting sexually oriented areas on the Internet. The Psychologists who conducted the research said: ‘‘This is a hidden public health hazard exploding, in part,

because very few are recognizing it as such or taking it seriously.’’ 5 Treating a new

public health problem of this magnitude will place inestimable burdens on our

health care system and unimaginable stress on addicts, their families and society.

In addition to the many other serious problems caused by the proliferation of

hard-core pornography in our country, its accessibility via the Internet is turning

America’s public libraries into virtual ‘‘peep shows’’ open to children and funded by

taxpayers. This is primarily due to failure of the Department of Justice (DOJ) to

enforce federal obscenity laws.

FRC has been calling this problem to the attention of the DOJ for several years.

On October 28, 1999, I was one of the representatives of pro-family organizations

who met with the head of the criminal division of DOJ, James Robinson, and representatives from other federal agencies who have responsibility for obscenity investigations and prosecutions. Once again, we voiced our concerns and complaints

about the lack of obscenity enforcement by DOJ. I personally provided Mr. Robinson

with numerous photocopies of images that I downloaded free of charge from commercial pornography Web sites. These hard-core images easily meet the definition

of obscenity under Miller v. California, 413 U.S. 15 (1973). The response from Mr.

Robinson and his follow-up letter to our group was unacceptable and frustrating because nothing has changed.

FRC is especially concerned about the effect on America’s public libraries caused

by the lack of obscenity law enforcement. With the help of FRC, David Burt, a public librarian who shares our concerns, mailed more than 14,000 Freedom of Information Act requests to the nation’s 9,767 public library systems, requesting copies of

complaints, reports and other documentation of incidents involving patrons accessing pornography.

30

6See 42 U.S.C. § 2000e-2; 29 CFR 1604.11; 18 U.S.C. § 242; 42 U.S.C. §§ 1981, 1982. See Pornography, Equality, and a Discrimination-Free Workplace: A Comparative Perspective, 106 HARVARD LAW REVIEW pp. 1075-92 (1993); Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486

(M.D. Fla. 1991). 7Paul Levy, Complaints filed over Web porn at Minneapolis Public Library; Librarians say

they work in a hostile environment, Minneapolis Star Tribune, May 4, 2000, at 1B.

A six-month investigation of the responses received uncovered more than 2,000

documented incidents of patrons, many of them children, accessing pornography, obscenity, and child pornography in the nation’s public libraries. Many of the incidents

were highly disturbing, as librarians witnessed adults instructing children in how

to find pornography, adults trading child pornography, and both adults and minors

engaging in public masturbation at Internet terminals. Analysis of computer logs

from just three urban libraries revealed thousands of incidents that went unreported, indicating that the 2,062 incidents represent only a fraction of the total incidents nationwide. The total number of incidents each year nationwide is likely to

be between 400,000 and 2 million. FRC has published the results of the investigation in a booklet titled Dangerous Access 2000 Edition: Uncovering Internet Pornography in America’s Libraries. I offer a copy for submission into the record.

Dangerous Access, page 5

Incident Reports, Patron Complaints, and News Stories Number

Child Accessing Pornography ............................................................................................................................................. 472

Adult Accessing Pornography ............................................................................................................................................. 962

Adult Exposing Children to Pornography ........................................................................................................................... 106

Adult Accessing Inappropriate Material ............................................................................................................................. 225

Attempted Molestation ....................................................................................................................................................... 5

Child Porn Being Accessed ................................................................................................................................................ 41

Child Accidentally Viewing Pornography ............................................................................................................................ 26

Adult Accidentally Viewing Pornography ............................................................................................................................ 23

Child Accessing Inappropriate Material ............................................................................................................................. 41

Harassing Staff with Pornography ..................................................................................................................................... 25

Pornography Left for Children ............................................................................................................................................ 23

Pornography Left on Printer or Screen ............................................................................................................................... 113

Total Number of Incidents ................................................................................................................................................ 2,062

Dangerous Access, p. 36.

Incidents included reports describing criminal conduct:

Crime Number

Documented

Number

Reported to Police

Percent

Reported to Police

Accessing Child Pornography ................................................................................. 41 5 12

Accessing Obscenity ............................................................................................... 25 0 0

Exposing Children to Porn ...................................................................................... 106 0 0

Public masturbation/fondling ................................................................................. 13 1 8

Total ........................................................................................................................ 172 6 3.5

Whether exposure occurs in a public library, school, nonprofit group, or business,

workplace pornography and computerized ‘‘cyberporn’’ are a source of potential legal

liability for those vested with management or control over the respective work environments. The viewing of pornography in public places creates an offensive, uncomfortable, and humiliating environment (in addition to unlawfully exposing or displaying such ‘‘harmful’’ material to minors). Pornography in the workplace can constitute, or be evidence of, sexual harassment in violation of state and federal civil

rights laws and create or contribute to a hostile environment in violation of Title

VII’s general prohibition against sexual discrimination in employment practices.6

This month, seven Minneapolis librarians filed a complaint with the Equal Employment Opportunity Commission because of the hostile and offensive working environment caused by daily exposure to Internet porn. The complaint cites conditions

in the library where sex offenders congregate; six-year-olds view hard-core porn;

child porn is left on printers; men masturbate; and a porn surfer brandishes a

knife.7 These are conditions one would expect to find inside a dirty bookstore, except

for the presence of six-year-olds.

31

8http://adultvideonews.com/legal/leg0300.html, visited April 11, 2000.

Month after month for the past seven years, the trade publication of the porn industry, Adult Video News Online, has praised the Clinton Justice Department for

not enforcing the federal obscenity laws. The March issue states, ‘‘How likely is it,

would you say, that we are going to enjoy the same benevolent neglect that the industry has enjoyed under Janet Reno? Regardless of who is elected, our fortunes are

going to change.’’ 8

Members of the Subcommittee, if a major drug cartel had a monthly publication

that repeatedly praised the Drug Enforcement Agency for its ‘‘benevolent neglect’’

toward enforcing the federal drug laws, I don’t believe this nation or Congress would

have tolerated it, and certainly not for seven years. The Department of Justice refuses to enforce an entire section of the federal criminal code that prohibits the trafficking in obscene materials. It must be called to account and held responsible.

Thank you.

Mr. TAUZIN. Thank you very much, ma’am.

And our final witness on this panel, Mr. Joseph Burgin, of Cincinnati, Ohio, brings to us his personal story. Mr. Burgin.

STATEMENT OF JOSEPH W. BURGIN, JR.

Mr. BURGIN. Thank you. I am here today to represent what I believe to be millions of men whose minds are being held captive by

electronic images. Each of us are experiencing consequences to

varying degrees but each of us are being adversely affected. But

more so than a representation of masses of people, I am here to

represent my two sons and my daughter who experienced some

crushing pain because of their father’s involvement with pornography.

In my case, humanly speaking, I have lost everything that a man

would hold onto to give himself meaning and perspective in life.

Because of my involvement with pornography, I lost my marriage

of 25 years. It also cost me the role of daddy, which I cherished,

to my 9-year-old daughter. My involvement with pornography also

cost me job opportunities and the career path of my calling and

choice. In addition to those things, I have lost friends and trust and

respect from many. The consequences that are measurable and tangible in my own life have been devastating enough. Through all of

my legal proceedings I have lost some $100,000 in support obligation, retirement funds, et cetera, et cetera, all easily traced back

upstream to my involvement with pornography.

So in addition to those measurable consequences, my involvement with pornography also affected me adversely emotionally. It

thwarted and hindered the normal development of coping skills

with life and an ability to manage my life on a day-to-day basis.

Instead of knowing how to do that, I was simply turned to the

sedating effect that I could find from online pornography.

As a man in mid-forties, I am now having to go back and relearn

those things to have any hope of any future that is any semblance

of normal relationships.

Through an awful lot of professional counseling and hours upon

hours of attendance at support groups and with accountability

partners, I have been able to find freedom from pornography.

But I can’t talk about the consequences before you today in the

past tense. Because of my involvement with pornography, I feel I

am scarred, I am handicapped, I will move into my future with a

limp. I will always be affected because of my years of involvement

32

with it. The moment any forward progress stops, then my regression begins.

So I am here today to make an appeal to do anything or everything that is conceivable to thwart or hinder the development of

this industry. In my own personal life it has brought devastating

consequences, and as my oldest son Josh said, tell them about it,

Dad; it has gotten out of hand, it has got to stop. So my family for

one, we are fed up with the industry.

Thank you.

[The prepared statement of Joseph W. Burgin, Jr. follows:]

PREPARED STATEMENT OF JOSEPH W. BURGIN, JR.

I am 46 years old. I am divorced after being married 25 years. My oldest son is

a junior in college. My middle child lives with me and is a junior in high school.

I also have a 9-year-old daughter who lives with her mom. I hold a Bachelor of Arts

and Master of Arts degree. For 20+ years I provided leadership and management

for nonprofit organizations in Ohio and Alabama. A major publishing company currently employs me as a regional manager.

I consider myself a sex addict with Internet pornography being my primary means

of acting out. I feel I have been a sex addict for more than thirty years. I have been

in recovery for about two years. In my active days of addiction I felt my self-esteem

was very low. I feel that in my addiction I struggled with depression. I consider myself in recovery from sex addiction with no relapses for a year and two months. My

religious beliefs are protestant. The Internet was an active part of my addiction. I

have used Internet photos and videos for my addiction. The Internet reactivated my

addiction that was inactive for years. I feel the Internet took my acting out to a

different level because of its ease of access. I believe my sexual orientation is heterosexual. I acted out in my addiction only with myself. All of my sexual fantasies in

my addiction were about women I did not know. The type of porn I would use was

mostly hard-core (sex acts depicted). In my marriage I had no affairs.

Since adolescence, I did a masterful job of concealing my struggle with sexual addictions and pornography. My own self-hatred, other personal handicaps and as well

as relational weaknesses made me a prime target for pornography. Internet pornography was extremely easy to access and hide. I deal with men regularly who are

caught in this trap because of the ease with which it can be accessed. I was sought

out as a customer through banner adds, Spam, unsolicited email attachments, etc.

The day of reckoning came in my life as a torpedo hit me with a full broadside

blow and my life sank. After going through an unwanted job change along with the

death of my father and other personal issues, I returned to an old friend for relief— pornography. For a few days the sedating effect from hour after hour immersion in

pornography numbed me out and I didn’t feel any pain. But my life-long hidden addiction soon came to light and my sons and subsequently my wife discovered my

darkest secret. As a result, my addictions cost me: my marriage; the role I cherished

as daddy; job opportunities in the field of my calling and choice; legal problems resulting in over $100,000 of fees, retirement income, and support obligations; significant financial difficulties; loss of friendships; loss of credibility and trust in the eyes

of some; etc. I’ve felt the stinging backhanded blow of professional peers and the

abandonment of many alleged friends. The consequences of pornography affected me

emotionally with a deep and permeating sense of shame and guilt. I’ve struggled

with loneliness and feelings of abandonment, rejection and betrayal. The pain at

times has been crushing. My anger toward pornography is intense—it cost me all

this and more while the pornographers make billions.

In addition to the external measurable consequences, addiction to pornography

also affected me emotionally and thwarted my development of appropriate relational

and coping skills. I feel it caused me to objectify women seeing them as nothing

more than a means to satisfy my desires. I grew less satisfied with my wife’s affection, physical appearance, sexual curiosity, and sexual performance proper. Sex

without emotional involvement became increasingly important. It created feelings of

power and control and led to me becoming a manipulative and controlling person

to those closest to me.

Thousand of dollars, hours of guidance by a professional Christian counselor,

hours in support groups and with accountability partners resulted in health and

healing and freedom. But the road is uphill and difficult. It is easily the hardest

thing I have ever done in my life to find freedom from pornography. I feel my relapse will begin when active recovery stops. There is no standing still, taking a

33

breather, or pausing for a rest. When the forward motion ends, the backward motion

starts. A recovering addict likened it to a tide: It is either coming in or going out,

and it never stands still.

I’m glad the Lord I serve is the Lord of the Mulligan. My God has helped me to

get up off the ground and get back into the game. ‘‘Hey kiddo, let’s take a Mulligan

on that one, okay, and start again. But this time let’s don’t include pornography in

the game?’’

Centuries ago, John Chrysostom wrote, ‘‘The danger is not that we should

fall . . . but that we should remain on the ground.’’ At times over the last few years

I have thought there is no tomorrow because of pornography, but the sun has been

coming up each day. I’ve been able to come to a better place but not until I found

freedom from pornography.

Sustained by God’s unmerited favor, Jody Burgin.

Mr. TAUZIN. Thank you very much, Mr. Burgin.

The Chair will recognize members in order for 5 minutes. Let me

begin by asking, I guess, the legal side of the equation. We are told

it is impossible, difficult or legally indefensible to bring an obscenity case on the Internet because of the concern that the Miller test

by the Supreme Court does have a community standard feature:

that it, one, requires on a national test the material be prurient,

appeal to the prurient interest; second, that it is patently offensive,

which is also a national test; but the third test which is based on

a community standard is that it has no artistic, political, scientific

or literary value based upon those community standards.

Now, what is different about the Internet in regard to enforcing

the 3-point Miller test? Would anyone like to handle that?

Mr. FLORES. Mr. Chairman, what I would say is that first of all,

the test, what we call the LAPS test, literary, artistic, political and

scientific test, is actually judged by the reasonable person, so that

is much more akin to a national standard which should not really

put anybody at any substantial distress. And let me just say that

the Justice Department, if I saw an accurate copy of the deputy assistant’s testimony, is going to talk to you about the Thomas case.

The Thomas case was prosecuted before the 1996 amendment. That

was a specific argument that was raised by the defendants and rejected by the court of appeals, and the Supreme Court refused to

accept certiorari, so that case died right there.

Mr. TAUZIN. Let me ask you in the offline world, if a violator of

the Nation’s obscenity laws were to mail or send in a package with

UPS obscene material to a site elsewhere in the country, would not

the obscenity laws still provide a vehicle for prosecution either at

the site where the material was mailed or at the site where it was

received, based upon the community standards test?

Mr. FLORES. That is correct, Mr. Chairman.

Mr. TAUZIN. I guess what I am asking, what is different on the

Internet, where a potential violator who wishes to send obscene

material over the phone wires, over a cable system, over a satellite

structure, over terrestrial wireless structure, sends it from a point

of location to another point where it is being viewed or in some way

copied, what have you, in a way that does violate the obscenity

laws of that locality—could not a prosecution be made both at the

point where the material is first sent over those systems of communications, over the Internet or over a phone line, or at the point

where it is being distributed in a community which has community

standards, that would clearly define that material as obscene?

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Mr. FLORES. That is right, Mr. Chairman. Not only that, but that

is what guarantees that our communities are going to have freedom, because if we had a national standard, then every community

would be forced to abide by one separate standard. This is what allows Californians per se to have a different community standard

and those in Memphis or Maine or anywhere else to have a separate one. And the fact that it is on the Internet, I mean folks who

use the Internet now should know at least one thing; and that is,

once they release that material, they know that it goes into every

community. In fact, that is what they are banking on.

Mr. TAUZIN. In fact, the fact that some of these companies are

actually going public, as you point out, going into IPOs and raising

incredible amounts of money, would that be occurring on Wall

Street absent this—what Ms. LaRue called this ‘‘benevolent neglect’’ in terms of prosecuting these companies for distributing obscene material?

Ms. LARUE. I don’t believe so. In fact, I believe that Wall Street

and others assume that because this material is rampant on the

Internet, that these people are providing a legal product. Certainly

we wouldn’t have the promotion by legitimate business of an enterprise that is constantly producing material that violates Federal

law.

Mr. TAUZIN. In regard to the laws here, can the State authorities

equally process these laws and bring cases against companies that

are located in, let us say California, that is going forward with an

IPO to distribute this material around the country and around the

world?

Mr. FLORES. There is certainly a sphere of control that States

have in this area but they certainly don’t have the tools nor do they

have the ability, because the Justice Department has jurisdiction

over the entire United States. They don’t have the jurisdictional

problems and disputes, and they have a unified Federal system. So

this is what makes the Federal Government the best place to spend

the limited money that is available to do this, but because of the

abdication, many States and localities are having to take this battle on even against traditional pornographers because that is the

only people who do it.

Mr. TAUZIN. You call it an abdication. You call it benign neglect.

I guess I want to ask the right question. Have cases been brought

to Justice and Justice refused to prosecute them, or is Justice in

your opinion just not looking to make a case? What is the story?

Mr. FLORES. Mr. Chairman, I know that when we met in October, as Ms. LaRue indicated, I brought to their specific attention

the fact that Amateur Action, the subject of the Thomas case, was

back in action and this time they were selling on the Internet movies which depicted amputees engaging in different types of penetration. This material wasn’t education. It wasn’t scientific. It wasn’t

offered as a way to teach those who are disabled. This is incredibly

prurient and patently offensive material. I brought it to their attention and clearly what came out of that was that simply they

have a different set of priorities.

Mr. TAUZIN. Ms. LaRue, you had your hand up.

Ms. LARUE. Yes, I can attest to that. And also as to your question about States enforcing obscenity laws on the Internet, I perVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
35

sonally assisted the pornography section of the Los Angeles Police

Department to prosecute a computer bulletin board service operating in California. They got a conviction in that case. And by the

way, the same type of argument was raised about community

standards in that case, and I drafted the legal memo that the court

accepted, and that argument lost, just as it did in the Thomas case

to which Mr. Flores referred.

Mr. TAUZIN. Thank you, Ms. LaRue. The Chair recognizes the

gentleman from Ohio, Mr. Sawyer, for a round of questions.

Mr. SAWYER. Thank you, Mr. Chairman, and let me thank all of

our witnesses for your testimony today. It has been illuminating,

and, Mr. Burgin, in some cases just tragic.

We find ourselves dealing not only with questions of the situs of

prosecutions or origination of materials that all of us would find offensive when we are talking about prosecutions within the United

States under U.S. law.

Have any of you given thought to the problems that arise with

sites that originate in the United States but which actually transfer materials outside the United States; or the reverse, where sites

are generated outside the United States and sending materials in?

Do you have thoughts on how we address that?

Mr. FLORES. Mr. Sawyer, I would direct you to page 5 of my testimony. I just note that on March 9 of this year, deputy assistant

Attorney General Kevin Di Gregory took justifiable pleasure in announcing that the week before his testimony a jury in Federal district court in New York found Jay Cohen, owner of an Internet

gambling site in Antigua, guilty of violating Title 18, Section 1084,

a statute that makes it illegal for a betting or wagering business

to use a wire communication facility to transmit bets or wagers in

interstate or foreign commerce.

Under the same theory that the Justice Department used to obtain the gambling conviction, there’s no question that they would

have the ability to do it. In fact there are cases, these deal with

child pornography, which were prosecuted during the time that I

was at the Justice Department, where foreign distribution, as soon

as it went into the mailbox, they were able to initiate the prosecution because it was destined to come back to the United States.

What the courts require is a substantial connection to the United

States. So the court has oftentimes said that the only way to address these issues, really, is globally. So the Justice Department,

I believe, is in the premier spot to really take some effective action.

Is it going to be perfect? I don’t think so, but we don’t ask that

of any other area of law enforcement, and so I think that would be

an inappropriate question for the Justice Department, or a level of

success that they would require from this area they don’t require

from anywhere else. And we do drug prosecutions all over the

globe, we do fraud prosecutions, copyright prosecutions. I mean, we

are a very aggressive global litigator in every other area.

Mr. SAWYER. Let me ask about problems that are perhaps unique

to the Internet. We have talked in a number of arenas about the

problems of mirroring, where one site transmits another. Who is

guilty in a circumstance like that, or does everybody who touches

digital pornography become guilty or potentially guilty of the kinds

of crimes that you would like to see prosecuted?

36

Mr. FLORES. With respect to that question, I guess I would, if I

were sitting back at Justice, the way I would answer that question

would be to take a look, first of all, to see whether or not the major

players really are hidden from view in that way, because the reality is that there are, you know, tens of thousands of sites out

there, but they are not owned by tens of thousands of discrete companies and individuals. And I think very quick research by the

FBI, which is very capable, as well as my former colleagues at the

Department, they could easily identify the top 20 or 30 companies.

Many of them operate out in the open with a real office, real business records. They have got those servers here in the United States

as well as overseas.

And so as we did when we started this fight in the late eighties,

early nineties, what we have to do really is pick out the best targets. We do have limited resources. I don’t think the mirroring

problem would present at all an issue, either investigatively or legally, to prosecution of proper targets.

Mr. SAWYER. Finally, very quickly, as technologies merge, do you

see a need to treat television and the Internet differently because

of the nature of the medium or simply recognize that these are pornography and obscenity laws that need to be enforced regardless of

the medium through which they are transmitted?

Ms. LARUE. That is certainly the approach that we would advocate. It also is what the Supreme Court has made clear, again in

the Reno versus ACLU case, that obscenity distribution is illegal

through any medium and the law applies to any medium.

Mr. SAWYER. Thank you, Mr. Chairman.

Mr. TAUZIN. I thank the gentleman. The Chair recognizes the

gentleman from Oklahoma, Mr. Largent, for a round of questions.

Mr. LARGENT. Thank you, Mr. Chairman. Mr. Flores, I would

like to ask you, if I could, a few questions. We have had the Attorney General up on the Hill before various committees. A number

of my colleagues have questioned her about this specific issue,

about the lack of prosecution on obscenity cases, and when pressed

for answer she would begin talking about the prosecution rates on

child pornography and stalking; basically not addressing the real

question, which is the obscenity issue, which is the focus for this

committee hearing. And I would like you maybe to just give us a

2-minute primer on the difference between child pornography and

stalking and obscenity cases, which is what we are trying to address here in this hearing today.

Mr. FLORES. Well, beginning first with probably the easiest, child

pornography, in 1982 the Supreme Court, in a case we refer to as

the Ferber decision, removed the whole area of sexually explicit

material dealing with children. They took it out of the obscenity

framework, so that it was no longer necessary for a prosecutor to

prove that the material lacked value. In fact, Justice O’Connor in

her concurring opinion noted that it really didn’t make a difference

to the child who was sexually exploited whether the material had

value, and so if you had an Ansel Adams-quality photograph, that

child is still being sexually abused. And for that reason, child pornography stands separate and apart as a type of material which is

illegal. And recently the Congress took the last step in closing out

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the last loophole, which is to simply say that all possession of child

pornography, even one item, is a Federal violation.

Child stalking is a growing problem, and that deals with people

who are out there seeking children for the purposes of sexual activity. This is not a new problem, but it is growing at a phenomenal

rate, to the point where I was at a briefing that was held by Congressman Frank’s office last year, where the FBI let us know that

for all intents and purposes, they were now really focusing solely

on child stalking, it had become such a big problem, and that with

the exception of very significant child pornography cases, they were

being forced to really just address that issue.

Obscenity, however, captures a broad set of materials and it is

a term of art, a legal term of art, so that no lawyer should ever

be confusing child pornography with obscenity, because obscenity is

that material which passes a 3-part test. The first two prongs of

that test are judged by contemporary community standards. The

third is judged by the reasonable person test, and so it is not confusing. In fact, in a 3-year period, as I said I think earlier, we had

over 120 convictions against no losses, as I recall, and there were

fines and forfeitures of over $21 million in that period of time.

So the pornography industry certainly understands what we are

talking about because, as a result of that effort, they stopped sending out, for the most part, unsolicited sexually oriented advertisements which today on the Internet is spam. They stopped carrying

the most revolting material, primarily real sadomasochism and

bathroom-related sex, and they stopped sending material entirely

into certain communities where the community standard was very

well-known.

So the term ‘‘obscenity’’ is also known extremely well to the

ACLU and to litigants in the first amendment context, because in

the CDA case, in the COPA case, they have not even begun to challenge whether or not those laws apply to the Internet.

Mr. LARGENT. So what I hear you saying is that the 3-prong test

that was established in 1973 is just as applicable to the Internet

as it is to any porn shop that we traditionally think of back in the

seventies or the eighties. The Internet really has had no effect on

the legal term of art, the definition, the execution, prosecution of

the law that we had prior to the Internet?

Mr. FLORES. That is correct.

Mr. LARGENT. Okay. Ms. LaRue, I know that part of your testimony you talked about the meeting that you had in October with

the Department of Justice. It is my understanding that at that

meeting that you submitted some specific porn sites to the Department of Justice. What was their response in regards to those specific porn sites?

Ms. LARUE. Well, in both the meeting and the follow-up letter,

Mr. Robinson said they found the suggestion that they enforce that

provision of COPA—which makes it illegal to distribute obscene

material to minors—be applied to the sites that I suggested. And

he said he found that interesting and that they would consider it.

Mr. LARGENT. But the distribution of obscene material to anybody, adult or child, is illegal under current law; is that correct?

Ms. LARUE. Absolutely. But under COPA, Child Online Protection act, there was a provision added to the Federal code that

38

brings an enhanced penalty for anyone who knowingly distributes

it to a minor.

Mr. LARGENT. So the law got better?

Ms. LARUE. Yes.

Mr. LARGENT. Not worse.

Ms. LARUE. Yes; doubled the penalty if you distribute to a minor

under the age of 16. And there is currently a bill pending by Mr.

Tancredo that would increase that to under 18.

If I might add to your comment about child stalking and child

pornography, while no one here on this panel, I know, thinks that

those aren’t serious offenses, aren’t we focusing on lesser—if you

look at what has happened in New York City at the reduction of

the crime rate, murder dropped 50 percent not because New York

police suddenly started enforcing the murder statute they always

had. It is because they started enforcing the statutes against lesser

crimes because the principle is it flips upward. If you send out the

message that obscenity will not be tolerated in the United States,

the pedophiles will get the message that they better not have their

child pornography up there because certainly that isn’t going to be

tolerated either.

And by the way, when it comes to child stalking, the effective

tool in the hands of a pedophile is to use adult obscenity to desensitize children and to educate them into what the pedophile wants.

So when we are asking that the obscenity laws be enforced, we

truly believe that if it is done, that these other crimes will take

care of themselves.

Mr. LARGENT. I yield back, Mr. Chairman.

Mr. TAUZIN. The Chair recognizes the gentleman from Texas, Mr.

Green, for a round of questions.

Mr. GREEN. Thank you, Mr. Chairman. Mr. Flores, what years

were you at the Justice Department?

Mr. FLORES. 1989 to 1997.

Mr. GREEN. Okay. So you were there during the beginning of the

explosion of the Internet in 1997?

Mr. FLORES. Yes, sir.

Mr. GREEN. It started, I guess, even after I was elected to Congress in 1993, still people didn’t know what Internet was back

then.

I want to commend you on your statement on page 7 where it

says, ‘‘Our Constitution protects speech but it does not protect obscenity,’’ and I agree. We—in Congress we have tried for many

years to pass laws that the Federal courts keep explaining to us

that there is a difference between obscenity and pornography, and

we can prohibit obscenity, but we have trouble prohibiting pornography to adults.

Most recently Congress passed the Child Online Protection Act

and the President signed it in October 1998, a Federal judge in

Philadelphia then immediately issued a preliminary injunction,

and the Justice Department has announced they are going to appeal that ruling. Is there any update in status? That was in April

of last year.

Mr. FLORES. We are waiting for a decision in the Third Circuit.

Mr. GREEN. I guess my concern is generally that testimony—is

that the Justice Department is not prosecuting as aggressively as

39

they should be and aggressively as they did while you were there,

and I know that is important to me because I want to see it happen. I also know that you know we pass laws and oftentimes the

courts have a different interpretation than we do as Members of

Congress. And I also agree that the legal definition of pornography

and obscenity shouldn’t be changed or it shouldn’t matter what the

medium is, whether it is the mail, the TV or the Internet. And it

may be a little more difficult, but as you said in your testimony,

you can prosecute even offshore facilities by attaching the assets

here in our country, and we do that in lots of cases, both civilly and

criminally.

Ms. LaRue, one of the questions when you talked about the availability of the Internet in public libraries, I agree that if I was sitting on a city council I would not want my Internet capability in

public libraries to have access to that type of material, and put a

filter on it. I don’t know if Congress can make that decision for the

City of Houston or City of Philadelphia. I wouldn’t want it in the

libraries any more than I would want it in our committee records.

I notice you place significant emphasis on Internet availability in

libraries, and I am unclear. Should we not have Internet capabilities in libraries without filters, or should we just encourage the filters being on it in our public libraries?

Ms. LARUE. We would encourage the Department of Justice to

enforce the Federal obscenity laws, and we wouldn’t have the problem that we have in public libraries.

Mr. GREEN. Well, again, the availability of the Internet in a public library, I can walk in, whether it is myself or my children who

are no longer minors, or my children who may have been minors

at one time, and maybe our fight should not only be on the Federal

level but also on the local level to say at a public library, I would

hesitate to have my tax dollars being spent for access to that kind

of information. So, again, I think it could be a 2-pronged effort and

ensure the overall prosecution because—whether it is a public library or somebody’s home computer. But do you believe libraries

should have access to the Internet?

Ms. LARUE. I have no objection to that at all. My objection is to

the bringing in of illegal material through taxpayer-funded government facilities, and we wouldn’t be having the discussion here

today, I don’t believe, if the Department of Justice were enforcing

the law.

Mr. GREEN. Well, again, the courts have said that, you know,

again whatever medium, whether it is Internet, mail or television,

that pornography, we have a hard time defining that, and so the

pornography may still be available but it is not obscene, at least

under the definition, but that would still be available in the public

libraries.

Ms. LARUE. We are advocating the prosecution of hard-core pornography that the court has clearly given us examples would meet

the definition in Miller versus California.

Mr. GREEN. Of obscenity.

Ms. LARUE. Yes. There is also State law available that prohibits

the dissemination of material harmful to minors, and the Supreme

Court in Reno versus ACLU took note of those State laws that are

applicable as well.

40

Mr. LAASER. Mr. Green, I would just point out that any of us who

are therapists in this field have seen cases of teenagers, 11, 12,

even 13-year-old children who have gone and accessed pornography

in public libraries. I personally am treating a case of a child that

accessed sadomasochistic activity at the public library. So it is

available there, and they don’t need to be that computer-sophisticated to get at it.

Mr. GREEN. I guess my concern is that we should—again, we try

to define what we don’t want children to see, and of course the Supreme Court has said adults can see it. How do we differentiate between whether it is a child, 12-year-old or 13-year-old sitting in

that terminal, or adult? That is a local decision.

Again, if I was sitting on a city council, I would say well, wait

a minute, I am so fearful of my child seeing it, I would filter it out

for anyone in the public libraries, and I don’t know if they would

allow us to prohibit that.

Mr. TAUZIN. The gentleman’s time has expired. Anyone wish to

respond?

Mr. FLORES. Just, Mr. Green, what I would say is that everyone

is struggling with this issue. I know State government officials, library officials, who are struggling. The people who apparently are

missing from the discussion, missing from the effort, is the Justice

Department and that is a very big absence.

Mr. TAUZIN. The gentleman’s time has expired. The Chair recognizes the Vice Chairman of the committee, Mr. Oxley, for a round

of questions.

Mr. OXLEY. Thank you, Mr. Chairman. As the author of the

Child Online Protection act, I take some particular interest in this

issue, and we are obviously waiting for the Third Circuit decision,

although I must admit I was somewhat taken aback by the Supreme Court decision announced yesterday regarding cable, which

was a relatively minor effort to try to get some handle on that

issue. And we hope that the decision ultimately by the Third Circuit or ultimately the Supreme Court has a different ending, but

in the meantime I guess we learned that we need to rely on existing laws for our prosecution, and clearly prosecution equals deterrence.

Ms. LaRue made a good point about New York City. All you have

to do is visit Times Square today and compare it to when I lived

in New York back in the late sixties, early seventies, what a huge

change that has meant to just that area but, as well, the entire

city. So, really, enforcement does provide a great deterrent to that

kind of behavior.

The unfortunate fact is that the prosecutions have declined significantly. As a matter of fact, Mr. Flores, do you know of any obscenity prosecutions in 1999 by the Department of Justice? We

couldn’t find any.

Mr. FLORES. Well, Mr. Oxley, there are a few obscenity cases

that were done, but none in the way I think that you are asking

the question. There have been zero cases done involving a Web site

or anyone doing business over the Internet. There have been some

people who have used the Internet to advertise, but they are basically running a mail order business. I think there is one case there,

and then there may have been a few others.

41

Oftentimes what you will see in child pornography cases is that

they will include obscenity charges, and because the obscenity section is 1460 and following, as compared to the child pornography

section which is 2251 and following, the obscenity charges lead off;

and in the recordkeeping systems of the Justice Department, oftentimes it is the top charge, the lead charge that is recorded. And so

unless you actually get the name and docket number and then actually look to see what the charges are that are brought, you cannot in fact identify what is going on.

My best information, from talking to former colleagues and from

folks across the country, is that there maybe have been a handful

of cases done in the past 2 or 3 years that are really obscenity

cases, and many of those stem from cases that were begun in 1993

and 1994.

Mr. OXLEY. Well, I want to personally thank you for helping us

on COPA and all the work that your center did. Clearly we made

enormous progress but there is a lot more to do.

I was struck by a quote from a New York Times article in 1986.

The article was entitled ‘‘X-rated Industry in a Slump. The pornographic industry’s plight is due partly to legal challenges. With little help from the Reagan administration, an unlikely alliance of

conservatives and feminists has persuaded many retailers to stop

carrying adult magazines and videos, said Martin Turkle, one of

the largest distributors of adult videos in the country. Next year is

going to be the roughest year in the history of the industry,’’ and

indeed it was. The sales of adult videos at the wholesale level

dropped from $450 million to $386 million. That is compared to

$3.9 billion, by the way, in 1996 which I am sure that those numbers have increased dramatically.

And last, from the Los Angeles Daily News article, this says, ‘‘Before Clinton took office, Los Angeles police were deputized by

the Federal Government so they could help prosecutors conduct

monthly raids on Valley pornographers. Under Clinton there have

been no raids, said Los Angeles Police Lieutenant Ken Seibert.

Seibert said adult obscenity enforcement by the Federal Government is practically nonexistent since the administration changed,’’

end quote.

Well, indeed, we are really in a trap here because if we have to

rely on existing laws until COPA is determined to be constitutional—and there is some question now with the recent 5-4 Supreme Court decision—so we are based in a situation where we

have to rely on existing laws, and we rely very heavily on the Justice Department to carry out that law. And it is just not being

done, and that is what the purpose of this hearing is about.

I commend my friend from Oklahoma for pursuing this so doggedly, because it does point out, I think, that deterrence comes

about because of strong law enforcement, and just the opposite

happens when you don’t, and we have seen those numbers increase

dramatically.

I was told during the COPA hearings, and I wonder if anybody

can bear this out, that there are over 10,000 commercial pornographic Web sites out there. Is that accurate?

Ms. LARUE. That is too low. The estimate is more like 40- to

100,000 sites.

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Mr. OXLEY. Just domestically?

Ms. LARUE. Yes.

Mr. OXLEY. That is a frightening figure. It gives you an indication about how the pornographic industry really has gotten the

upper hand in this whole equation.

Thank you, Mr. Chairman.

Mr. TAUZIN. The Chair recognizes the gentleman from Florida,

Mr. Stearns, for a round of questions.

Mr. STEARNS. Thank you, Mr. Chairman, and I want to thank

you for having this hearing and I want to thank my colleague from

Oklahoma for his hard work on this.

Mr. Burgin, I am going to compliment you for your personal courage. The witnesses we have today are here to testify and the witnesses from the Department of Justice are here to testify, but they

don’t have the personal courage and strength that you have, and

I want to compliment you for it and thank you for it, and I think

everybody who has a family should certainly understand what you

have been through.

I think the concern I have—Mr. Largent has given me a chart

here to show, you know, the difference between obscenity and indecency and so forth. Because the Internet is so pervasive, did you

find this addiction, this sedating effect because of its availability

through the Internet, did you have this feeling that because it is

in—I guess what I am asking is, did this start before the Internet

or was the Internet the start of this whole process? Because you

can go into the magazine stores, you can see it in television. As you

know, here in Virginia, in Metropolitan Washington, Maryland, the

cable TVs have scrambled the pornography, but the scrambling—

the voice is still available and scrambling is not complete. So I

mean, I think we have to pass laws, but I am concerned a little

bit about how this came about, I guess, and that is my question.

Mr. BURGIN. Okay. My own personal experience predated the

Internet. My father introduced me to pornography during my adolescent years. I went underground for many years on and off dealing with the issue. What happened in the eighties when I discovered the Internet is that my addiction accelerated. It took off and

went to a completely different level, mainly because of its ease of

access and was so easy for me to hide and to mask from my own

family, from my wife, from my children. So the Internet for me provided ready access, and it caused my addiction with pornography

to accelerate to a different level.

Mr. STEARNS. Dr. Laaser, I would like you to participate because

I was going to ask you, in the patients you have treated, how many

would you classify as addicted to obscene material, which is illegal,

as opposed to those who are addicted to legal pornography? That

is the next question.

Mr. LAASER. I just wanted to commend you about your question

about etiology, about where does it start. And my answer to that

would be that we are seeing today a population of addicts that

might not otherwise become addicted because of the easy access to

the Internet. In other words, my clinical colleagues are beginning

to speculate that, you know, there are a whole set of people whose

prohibitions would be such that would keep them from going to a

43

bookstore, whereas the access on the Internet is allowing them to

get in and get addicted.

So there is, like Bill W. of Alcoholics Anonymous would call a

new level of low bottom of sexoholics out there, low bottom drunks

getting addicted that wouldn’t have been. I just wanted to say that

even though Mr. Burgin represents a history of pornography before

the Internet, we now today have an epidemic of sexual addicts who

started on the Internet that might not otherwise be addicted.

In terms of your question, you want me to go ahead and respond?

Mr. STEARNS. Sure.

Mr. LAASER. The percentage would be—it depends a lot on how

you define obscene. I would say that in my definition of obscenity,

would be a lot lower, or however you define it, in terms of I think

there are magazines available at the airport, where I will be later

this afternoon, that are obscene. So you know, virtually 99 percent

of the material that is available on these Web sites in my estimation is obscene. I bring a certain moral perspective to that that

all might not share. So in that case, 100 percent of my clients are

addicted to obscene material.

The percentage of those that might get into the violent, those are

all people that have, you know, emotional disorders that are underlying the addiction that need to be present, but what we are seeing

is that more people are escalating to higher levels of addiction

today than would have been the case just 10 years ago.

Mr. STEARNS. And now they are probably on a 56K modem.

Mr. LAASER. That’s right.

Mr. STEARNS. But wait until we have broadband in which we

have instant video and everything that goes with it, and eventually

the high definition television. So what we are talking as a beginning stage here is if we think we have a problem now, once we get

broadband.

Mr. LAASER. All right. Today, with virtual reality available, the

prostitutes, the world’s oldest profession, have been certainly creative. You can access prostitution on the Internet. As I say in my

written testimony, I had a client this February who spent $85,000

on prostitution on the Internet. In other words, clicked in visual

images being projected because the prostitute had a camera focused

on herself. Those kinds of sites are available today all over the

Internet for credit card moneys. You can pay your $2- or $300 at

a shot.

So as computer technology improves and virtual reality improves,

we are going to have interactive prostitution exchange. So I would

commend this committee to get on top of this now because it is

definitely getting worse.

Mr. STEARNS. Thank you, Mr. Chairman.

Mr. TAUZIN. The Chair recognizes the gentleman from Maryland,

Mr. Ehrlich, for a round of questions.

Mr. EHRLICH. Doctor, I worked with these issues in the State legislature, particularly pedophiles and pedophilia. Would you care to

comment with respect to what you just talked about, the unlimited—or what Mr. Stearns talked about—the unlimited access that

we are talking about here with respect to studies that you are familiar with concerning organized pedophiles? And I know there are

actually groups out there that march, that God knows will probably

44

apply for 501(c) status sometime. This is a very serious concern. It

kind of gets lost sometimes in the course of this debate.

Would you give me your knowledge with respect to how this unlimited access problem has impacted numbers of pedophiles and organization thereof?

Mr. LAASER. Obviously, we are dealing with a population that is

very secretive so academic research into the increase of the number

of pedophiles has been rather limited, but I would say that all of

my colleagues, including those who have written in a recent journal

devoted to the issue of Internet pornography, are estimating that

we are seeing a dramatic rise in pedophilish activities.

One of the rituals that your average pedophile will use is to show

a child images of pornography, so that what we are seeing today

is that the pedophiles who are generally hiding out in the chat

rooms, disguised in a variety of forms, are engaging the trust level

of the child. And then they are able now electronically to transmit

images either of fairly soft stuff to begin with, again to gauge the

trust, but then of themselves and other kinds of activities.

The easy accessibility of this, we believe, is increasing the numbers of pedophiles and certainly increasing the number of kids that

are at risk to this.

Mr. EHRLICH. The empirical data I am familiar with reflects the

fact that pedophiles, almost to a person, were abused as children.

Mr. LAASER. That is right.

Mr. EHRLICH. And of course what you are talking about plays

into that as well.

Mr. LAASER. Your average pedophile was abused as a child, and

the research would indicate that your average pedophile will offend

against a child within a 1-year variance of the year at which they

were abused. So that if a child was sexually abused at age 5, a

pedophile’s victims will normally be between the ages of 4 to 6. So

that, yes, what you are calling is the—it is kind of what we refer

to as a trauma bond; in other words, a victim becomes a victimizer.

That is not a universal principle, but certainly your average

pedophile today is an abuse victim.

Mr. EHRLICH. Your average pedophile, I guess the profile is such

that you are not talking about one instance, you are talking about

multiple offenses?

Mr. LAASER. No. Your average pedophile has at least 80 victims

by the age of 35.

Mr. EHRLICH. To anybody on the panel, with respect to some of

the sites that you are familiar with, how many are out there dedicated to the whole problem of child sex, pedophiliacs, et cetera?

Ms. LARUE. They certainly advertise the material as appeals to

pedophiles because it refers to teen sex, barely legal, little girls,

Lolita, all of the kinds of terms that would be meaningful to a

pedophile looking for material. And so you see individuals where,

even if you cannot be certain that they are under the age of 18,

they are portrayed in that way, they are advertised in that way,

and they are engaging in all kinds of hard-core sex acts.

Mr. LAASER. I would confirm the fact that we are seeing an epidemic of disguised child pornography. In other words, the models,

you know, there is a fine print that says that the models are 18,

but they appear to be 12 or 13. I would even say—and I am not

45

going to mention the magazine—but there is a cover of a recent

magazine this month in which the model on the cover would appear to me to be 13 or 14.

So I mean, this is affecting us culture-wide, but on the Internet,

particularly from some of the foreign Web sites, we are having a

lot of direct stuff coming. But if you go into any bookstore today,

you will see magazines like the Barely Legal magazine, Just 18,

things of that nature. There is an epidemic rise in interest in this.

And, by the way, my clinical colleagues would want me to say

that pedophilia is technically sexual interest in a child 12 and

under. What we are talking about here with this teenage sexuality

is 18 and under, and we refer to that as hebephelia, but it is a

rampant problem and, again to say it for the 10th time, growing

in epidemic proportions.

Mr. FLORES. I would like to add two things. One is that the Safeguarding Our Children, United Mothers and Cyber Angels has a

list, and their estimation is there are approximately 40,000 sites

devoted to this type of topic. Whether they range from actual child

pornography or pseudo-child pornography, I don’t know.

Mr. EHRLICH. When you are talking about 40,000 sites, you are

talking about child pornography?

Mr. FLORES. Sites which pander to what would most people

would think would be sex, interest of sex with children. But I think

that, you know, one of the things that you would normally see is

that in most of the Justice Department’s prosecutions of child pornography, they really focus on a very—and when I was there, I did

the same thing—we focus, we try to say from the bright line, from

the age of 18, because quite frankly there are a ton of cases out

there and it is like shooting fish in a barrel.

But what it means is that because many of the men and women

or boys and girls that are depicted in this pseudo-child pornography can be anywhere between 13 and 18, and they have adult

bodies, but these are bodies which also correspond to, you know, a

body type of someone without big hips or big breasts or what you

would normally acknowledge to be an adult woman. We don’t

know, because we don’t know who those children are. We don’t

know how old they are. We don’t know the pornographer. Is the

guy honest in telling us, yes, I have verified, I have checked the

birth certificate, I have checked the driver’s license? And this is a

particularly vulnerable age, especially today.

I remember as a teenager I wanted to be 21 in just a horrible

way, and so to be treated as an adult, to be treated as mature, is

of great interest. And so we have all of these children that are out

there, and I for one as I look at some of these images that are offered as adult, barely legal, just over 18, I wonder if many of them

are 13 or 14 and 15. And it would seem to me, even if you didn’t

want to tackle some areas of adult obscenity, this would be an area

that cries out for attention because these are our kids.

Mr. EHRLICH. Well put, and my time is up. Thank you all very

much.

Mr. TAUZIN. The Chair recognizes the gentleman from Mississippi, Mr. Pickering, for a round of questions.

Mr. PICKERING. Thank you, Mr. Chairman. I want to thank you

for having this hearing today and allowing us a chance to listen to

46

the panel and to see if there is something that can be done to gather and garner the attention of the public and the Justice Department of the great need to protect our children, to fully enforce both

obscenity and child pornography laws. I want to thank Mr. Largent

for all of his hard work in this area and being the force behind this

hearing.

I think Mr. Largent is right: If we enforced our obscenity laws,

a lot of the other efforts that many of us are doing—I have a bill,

for example, that would require all schools and libraries to have a

filter or a blocking device if they accept an e-rate. In many ways,

that could protect our children from many of the harmful effects of

both obscenity and pornography as well as other sites that induce

violence or hatred that we are seeing in school-age children that

have access.

Let me ask Ms. LaRue and other members of the panel, if the

Justice Department continues its laissez-faire approach to obscenity, would a national policy for our schools and libraries of finding

some protective filter or blocking or some policy, do you think that

would be a helpful step as well to protect our children? Ms. LaRue.

Ms. LARUE. Mr. Pickering, this problem is so serious and so pervasive that we have to do everything we can to protect the children

of this country and to prevent more victims who will become addicts to this material and to do, as the Supreme Court said, to hope

to maintain a decent society.

However, with all due respect, and I certainly support your bill

wholeheartedly, and I think you will agree with me, when we talk

about filtering and all that parents can do, we are talking about

almost Band-Aid applications to an epidemic. To me it is like telling the citizens of a particular community where the dam is breaking. Well, you can go down to the local fire department and get

some free sandbags. It is time to fix the dam. It is time to hold

those accountable who have jurisdiction over this dam that has

burst on this society, to enforce the law and to prevent us from

having more victims and turning our libraries into virtual dirty

bookstores.

There is an incident in this book, one of the more than 2,000,

where a 13-year-old boy in Phoenix, Arizona went into the men’s

room of the public library and offered a 4-year old boy 25 cents if

he could perform a sex act on him. I have a copy of the police report. When the police interrogated this 13-year-old boy about why

he did this, where he learned this, he said, I come in here every

day and I look at pornography. And, by the way, he just happened

to get into a chat room with a pedophile, who dared him to do that

very thing, to try to commit a sex act on a younger child.

And so, yes, while I support your bill and I applaud you for it

and for others like it, we just can’t rely on that. We have to have

the Department of Justice enforcing our Federal obscenity laws.

Mr. LAASER. I am sorry to keep interrupting.

Mr. PICKERING. Let me ask you, Mr. Laaser, what are you seeing

in your practice as far as children who may be exposed? You had

mentioned one case, access of an 11-year-old boy who acted out on

what he was seeing at a public library. Are you seeing other children, whether through their school or through libraries, that are

47

having the manifestations of problems that can really be destructive?

Mr. LAASER. Very definitely. As I think I have said before, we are

seeing a rise in the cases of teenagers who are at that age, 12, 13,

14, 15, addicted already to sexuality in general. We are seeing an

increase in the numbers of kids. It used to be that you would not

expect a 7-, 8-, 9-year-old to present with problems of having seen

pornography. Today we are seeing those cases.

Mr. PICKERING. Now, do many of them talk about their access

being schools or libraries?

Mr. LAASER. Yes, absolutely. Yes. I mean, you know, parents of

minors, parents who are providing Internet filtering devices like

the one presented here today, I mean they can still go to their public schools and get it there. I would challenge—and I get myself in

trouble. We could go to any public school within a 50-mile radius

that has online access and we don’t need very many computer

skills and we could get into the hardest and most violent core types

of pornography.

Mr. PICKERING. Mr. Flores, let me ask, you are legal counsel on

the subject of filters for schools and libraries. Yesterday I was very

disappointed. When I was working on Senator Lott’s staff and on

the Telecommunications Act of 1996, I worked on the amendment

that would require the cable systems to fully scramble the pornographic or adult sites. That was struck down on a 5-to-4 decision

yesterday. It was the Lott-Feinstein amendment.

Would you see any, based on current court precedent decisions,

would you see any legal or constitutional challenges to a bill that

would require schools and libraries to use filters if they accept the

e-rate?

Mr. FLORES. The Supreme Court has provided broad latitude to

the Congress to condition receipt of its money on action by State

and localities. Obviously it has to be done within certain limits. It

is not carte blanche, and I don’t think that many Members of Congress really want to impose a straitjacket on any community, but

certainly I don’t think that there would be a constitutional problem

with that. I think that falls probably more into the area of just

plain politics.

I would, if I could, just follow up on Dr. Laaser’s comments. One

of the things that you will hear probably from the Justice Department is about a case called the Orchid Club, and I worked with the

assistant U.S. attorneys who were prosecuting that case, and it is

such a revolting case that it is hard to really conceive that actions

like that took place. But I think that is part of the issue, is that

there is a sense of lawlessness on the Internet because the marshal

is not there. I mean, there just does not seem to be—and this cuts

across a number of areas from copyright and fraud, penny stock

manipulation.

The other issue is that the Justice Department is spending a

substantial amount of money working on important efforts, things

like violence against women, trying to make sure that there aren’t

unconstitutional glass ceilings, making sure that girls get access to

science and math programs. And all of these are jeopardized if we

have a generation of boys who are going to grow up addicted to material which teaches them that girls like sex with humiliation and

48

pain; that the secretaries really—that is her job, is to make the

boss happy, not to really carry out official business. I mean, this

sends just horrible messages which undermine—even the date rape

drug, Rohypnol, that Attorney General Reno focused on a number

of years ago, we are going to see an explosion in date rape because

this material teaches one consistent message: No does not mean no.

And the early Playboy philosophy was that it is every man’s job in

life to relieve women of that nasty little fact, their virginity. This

is a consistent message and it places even DOJ programs at jeopardy.

Mr. TAUZIN. The gentleman’s time has expired. We are faced

with a choice here that I want to perhaps ask your assistance, Mr.

Gershel. We are finished with this panel, and what I would like to

do is give everybody a lunch break and come back at 1:30 if that’s

acceptable to you.

Mr. GERSHEL. That will be fine.

Mr. TAUZIN. While he is discussing it, let me take care of a point

of business and get back to you. Ms. LaRue, we have examined

with legal counsel your request. If you would like to reenter your

request we can accept your material provided that it be filed in the

permanent record of this proceeding, not for duplication, which is

the normal process I think. Is that acceptable?

Ms. LARUE. It certainly is.

Mr. TAUZIN. Then, without objection, her material will be accepted by the committee, filed in our permanent record.

The gentleman from Texas.

Mr. GREEN. Mr. Chairman, I understand there is a committee

hearing in this room, at 2:30 in this room. Even more so, I would

like to follow up while we are discussing, and I understand Ms.

Stewart with FamilyClick.com actually has an Internet service that

libraries could buy that is between the ISP and the libraries, and

I would just like to know that because I think—in fact, I agree with

my colleague from Mississippi’s legislation, and I know the technology is there to be able to do that.

Mr. TAUZIN. Let me recognize the gentleman to ask that question

while I discuss with Mr. Largent.

Mr. GREEN. Is that correct? And I apologize for not being here

earlier because of votes and everything else. Is that true that the

Houston public libraries and my Harris County public library in

Houston can actually purchase that ability right now to have that?

Ms. STEWART. Yes, sir. There are many filtering companies that

provide filters, some better than others. The filters do a great job

of protecting innocent searching, blocking, you know, the things

that I pointed out. But if you want to find pornography, or you go

in there for a specific purpose, you will find it. There is no way for

us to block it all because it is coming online so fast every day. And

also the images, we do not have the technology available right now

to scan the images. We are testing with it. It runs on great multimillion dollar computers and it is impossible for us to put that online right now.

Mr. TAUZIN. The Chair will put Mr. Largent in the chair and we

will continue the hearing so that we don’t have to—unfortunately,

we won’t have a lunch break, but that I think will keep everybody

in the room.

49

So, Mr. Gershel, we will proceed on time. Let me thank this

panel very much and we appreciate your attendance. The record

will stay open for 30 days. If you have additional information or

submittals, you are perfectly free to do so, and members may have

written questions within the 30-day period of time they want to

send you.

Again, thank you for your testimony and let me particularly

thank you the two of you for your personal observations on your

own personal history with this issue.

We will now call the second panel, Mr. Alan Gershel, the Deputy

Assistant Attorney General, Criminal Division, Department of Justice. Mr. Gershel, I was unhappy about the discussion we had this

morning. I am very happy you stayed and listened to this panel,

and what you have heard today may be a backdrop in terms of

what you want to tell us in terms of the Justice Department’s position on enforcing these criminal statutes. I thank you for being

courteous enough to sit through the first panel and to hear their

testimony.

The Chair will ask you again, as we ask all our panelists to,

without objection, that the written statement of Mr. Gershel is a

part of the record, without objection. Mr. Gershel, we will be generous in terms of providing you additional time to make your presentation, and the Chair now recognizes you for that and recognizes

Mr. Largent in the Chair.

Mr. LARGENT [presiding]. Go ahead, Mr. Gershel.

STATEMENTS OF ALAN GERSHEL, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY TERRY R. LORD, CHIEF, CHILD EXPLOITATION AND OBSCENITY SECTION, CRIMINAL DIVISION,

DEPARTMENT OF JUSTICE

Mr. GERSHEL. Mr. Chairman, good morning. Sitting on my right,

I would like to introduce Mr. Terry Lord. He is the chief of the

Child Exploitation and Obscenity Section. He is joining me up here

this morning as well.

Mr. Chairman, I welcome this opportunity to speak about the

achievements of the Department of Justice regarding its prosecution of illegal use of the Internet to exploit our children. In the

brief time that I have today, I would like to highlight what the Department of Justice has been doing. At the outset, I have heard the

testimony about the proliferation of obscenity on the Internet. I

know there are victims of Internet obscenity and that obscenity has

damaged the fabric of many marriages.

The Federal Government takes seriously its mandate to prosecute obscenity cases, and each year various United States Attorneys bring obscenity prosecutions against material they deem is obscene according to their own community standards.

In considering the question of how to address illegal material

that proliferates on the Internet, however, the Attorney General

has given the investigation and prosecution of cases involving the

use of minors in producing pornography the highest priority, and

I can assure you that the Department will continue to do so.

The visual representations of children engaged in sexual activity

are the most pernicious form of obscenity because it necessarily inVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
50

volves an unconsenting victim. I would like to tell you about some

of our efforts in this area.

Child pornography prosecutions are at a nationwide all time

high. According to figures provided to us by the executive office of

the United States Attorneys, in fiscal year 1999, United States Attorneys filed 510 Federal child pornography cases concerning 525

defendants. During that same period, 378 persons were convicted.

In fiscal year 1999, the Department had a 90 percent conviction

rate. This increase reflects in part our national effort to prosecute

those who utilize the Internet to exploit our children.

Here in Washington, D.C., the Criminal Division continues to coordinate the Department’s efforts to prosecute traffickers of child

pornography. Most recently, the United States Attorney’s Office for

the Northern District of Texas indicted five individuals.

Mr. LARGENT. Mr. Gershel, if you will excuse me just for a second, we understand the Department has an excellent record on

prosecution of child pornography. However, that is not what this

hearing is about. So if you want to go ahead and cite statistics

about things that this hearing has nothing to do with, that is fine,

I will let you continue. But again, the focus of this hearing is on

the prosecution of obscenity, not child pornography. You may continue.

Mr. GERSHEL. Thank you, Mr. Chairman. With all due respect,

we take the view that child pornography is the worst kind of obscenity, and we believe that it is a primary mission of the Child

Exploitation Section at this time. I would like to continue with my

statement. It is much along the same lines.

As I indicated, here in Washington, the Criminal Division continues to coordinate the Department’s efforts to prosecute traffickers of child pornography. In the case I just mentioned it involved five individuals, two Americans, one Russian, and two Indonesians, in a multiple-count indictment with sexual exploitation of

minors, distribution of child pornography, aiding and abetting and

criminal forfeiture. The two American defendants operated a credit

card verification service that acted as an electronic gateway to the

pictures and movies of minors’ sexually explicit conduct. Also as

part of the conspiracy, the American defendants operated a bulletin

board service to capture customers, notices, promotions, advertisements and images of child pornography in order to market, advertise, and promote child pornography by computer.

The Child Exploitation and Obscenity Section in collaboration

with the FBI also helped to coordinate the Innocent Images project

which was organized in 1995 to combat the trafficking of child pornography over computer networks. CEOS, as it is called, continues

to work closely with the FBI on the Innocent Images project. The

FBI is currently creating regional task forces to work these cases,

and CEOS participates in training with the task force personnel.

The CEOS works closely with United States Customs Service

and its Cyber Smuggling Center, which has several undercover operations in effect. CEOS is working with the Customs Service on

Operation Cheshire Cat, an international child pornography investigation. This operation was an outgrowth of the Orchid Club case

to which I have referred in my written testimony.

51

For the preparation for this project, CEOS worked with the Customs Service in 28 Federal districts to develop search warrant affidavits and provide other guidance. CEOS continues to provide technical assistance on this and other Customs Service child pornography projects.

The Department also works closely with the United States Postal

Inspection Service which has developed numerous undercover operations targeting Internet child pornographers who use the U.S.

mail to ship child pornography materials. CEOS is currently working with the Postal Service on projects looking at the Web postings

offering child pornography to be shipped via the mail.

Our efforts to protect children using the Internet have not

stopped at the national level, however. The Office of Juvenile Justice and Delinquency Prevention, OJJDP as it is called, in fiscal

years 1999 and 2000 has provided funding for the establishment of

30 Internet Crimes Against Children Task Forces in several regions around the country that involve local, State, and Federal law

enforcement working together on these crimes against children.

Two attorneys from CEOS have been assigned as legal advisers

to the task forces, and they regularly participate in the training

programs for the task force personnel.

We are also working with new tools enacted by Congress that enable us to quickly acquire information about violators from Internet

service providers and to subpoena identifying information. Pursuant to the Protection of Children from Sexual Predators Act of

1998, Internet service providers are required to report incidents of

child pornography on their system through the appropriate Federal

agency. In November 1999, Congress amended the statute to require providers to report such incidents to the cyber tip line operated by the National Center for Missing and Exploited Children,

which in turn contacts Federal and State law enforcement.

The Protection of Children from the Sexual Predators Act also

granted administrative subpoena authority to the Department in

cases involving child abuse and child sexual exploitation. The Attorney General has delegated the FBI, criminal division of the Department, and the United States Attorneys’ offices with power to

issue these administrative subpoenas to Internet service providers

who require specified identifying information about those who unlawfully use the Internet to sexually exploit children.

The Department has also facilitated prosecution of Internet

crimes against children on the international front as well. In September and October 1999, the Department attended an international conference on combating child pornography on the Internet in Vienna, Austria. We played a major role in the planning of

this conference. During this conference, an Internet service provider discussed the development of an industry code of conduct to

combat child pornography online and made several recommendations for the type of issues that must be covered.

CEOS also works internationally with the European Union and

the Council of Europe to develop protocols to combat child pornography. These protocols, which are still being negotiated, cover not

only substantive criminal law regarding what conduct all countries

must prescribe but also procedural guidelines for investigations

that necessarily are international in scope.

52

What I have presented today highlights just some of our efforts

the Department of Justice has made to protect our families online.

We have made a strong commitment to our child protection efforts

and this commitment will continue.

Thank you again for the opportunity to appear before the committee today. I will be happy to try and answer any questions, Mr.

Chairman.

[The prepared statement of Alan Gershel follows:]

PREPARED STATEMENT OF ALAN GERSHEL, DEPUTY ASSISTANT ATTORNEY GENERAL,

CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

Mr. Chairman and Members of the Subcommittee: I appear today to discuss a

matter of importance to us: the proliferation of pornography on the Internet and the

danger to children that can result from the use of the Internet for unlawful activity.

1. In considering the question of how to address illegal material that proliferates

on the Internet, the Attorney General has given the investigation and prosecution

of cases involving the use of minors in producing pornography the highest priority,

and I can assure you that the Department will continue to do so. Visual representations of children engaged in sexual activity are the most pernicious form of obscenity

because it necessarily involves an unconsenting victim. As an example, the Department recently prosecuted a child pornography production ring, known as the ‘‘Orchid Club.’’ Members of the ‘‘club’’ requested and received real time images of children being molested in front of video cameras that relayed the pictures to members

via the Internet.

Furthermore, with the prevalence of computers and easy Internet access, there

has been a rapid increase in crimes involving trafficking in child pornography and

use of the Internet to meet children for sexual activity.

The Department has devoted a large portion of its resources to prosecute aggressively this increased threat to children. Over the past four years, the Child Exploitation and Obscenity Section’s (CEOS’s) original mandate to prosecute obscenity, including child pornography, has been greatly expanded. The Section is now also

tasked to prosecute additional crimes that have child victims. Since Fiscal Year

1996, the information we provided to Congress to support our budget request included a description of the expanded mission.

The most recent budget submission to Congress (for FY 2001 now pending) described CEOS as a section that prosecutes and assists United States Attorneys in

prosecuting persons who, under the federal criminal statutes: possess, manufacture,

or distribute child pornography; sell, buy or transport women and children interstate or internationally to engage in sexually explicit conduct; travel interstate or

internationally to sexually abuse children; abuse children on federal and Indian

lands; do not pay certain court-ordered child support payments; transport obscene

material, including child pornography, in interstate or foreign commerce either via

the mails, common carrier, cable television lines, telephone lines or satellite transmission; and engage in international parental child abduction.

CEOS attorneys assist United States Attorneys Offices (USAOs) in investigations,

trials, and appeals related to these statutes. Additionally, CEOS attorneys provide

advice on victim-witness issues, and develop and refine proposals for prosecution

policies, legislation, governmental practices and agency regulations in the areas of

sexual exploitation of minors, child support and obscenity for USAOs, United States

Customs Service, United States Postal Service, and the FBI. CEOS also conducts

and participates in training of federal, state, local and international prosecutors, investigators and judges in the areas of child exploitation and trafficking of women

and children.

The Child Exploitation and Obscenity Section has coordinated several investigation and prosecution programs to combat the use of computers and computer bulletin board systems that traffic in child pornography. These programs specifically

target the illegal importation, distribution, sale and possession of child pornography

by computer, as well as individuals who attempt to solicit children online for exploitation. These investigations often utilize undercover agents, posing as children, but

who are trained not to engage in activities that might constitute entrapment.

Our efforts have produced striking results. In the past five years, we have seen

an increase in child pornography cases filed from 127 in fiscal year 1995, to 510

cases filed in fiscal year 1999. We have seen similar increases in cases filed under

statutes prohibiting using the Internet to entice a child for illegal sexual activity,

53

and traveling in interstate commerce for the purposes of meeting a child for illegal

sexual activity.

2. We have also worked closely with the Civil Division in defending the Child Online Protection Act (COPA), as enacted by Congress in 1998. As recently recognized

by the district court reviewing the Child Online Protection Act, it is undisputed that

‘‘sexually explicit material exists on the Internet,’’ including the World Wide Web.

This material includes ‘‘text, pictures, audio and video images,’’ and ‘‘extends from

the modestly titillating to the hardest core.’’ The House Report on COPA estimated

that there were approximately 28,000 Web sites promoting pornography, and that

these sites generated ‘‘close to $925 million in annual revenue.’’ H.R. Rep. No. 105-

775, at 7 (1998).

Congress first sought to address the problem of children’s access to sexually explicit materials on the Internet in section 502 of the Communications Decency Act

(‘‘CDA’’), enacted in 1996. The CDA prohibited the knowing transmission of obscene or ‘‘indecent’’ messages over the Internet to persons under the age of 18, 47 U.S.C.

§ 223(c) (Supp. II 1996), as well as the sending or display of patently offensive sexually explicit messages in a manner available to those under 18 years of age. 47

U.S.C. § 223(d). The statute provided, however, that it would be an affirmative defense to prosecution for those persons who had ‘‘taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors’’ to those communications covered by the statute, or who had restricted access to a covered communication ‘‘by requiring use of a verified credit

card, debit account, adult access code, or adult personal identification number.’’ 47

U.S.C. § 223(e)(5) (Supp. II 1996).

On June 26, 1997, the Supreme Court held the CDA unconstitutional under the

First Amendment. Reno v. ACLU, 521 U.S. 844 (1997). The Court noted that it had

previously agreed that the government has a ‘‘ ‘compelling interest in protecting the

physical and psychological well-being of minors’ which extend[s] to shielding them

from indecent messages that are not obscene by adult standards.’’ 521 U.S. at 869

(citation omitted). But, emphasizing that the ‘‘breadth of the CDA’s coverage’’ was ‘‘not limited to commercial speech or commercial entities,’’ and that ‘‘[t]he general,

undefined terms ‘indecent’ and ‘patently offensive’ ’’ would ‘‘cover large amounts of

non-pornographic material with serious educational or other value,’’ id. at 877, the

Court invalidated the statute because it ‘‘place[d] an unacceptably heavy burden on

protected speech.’’ Id. at 882.

With the invalidation of the CDA, Congress renewed its efforts to address the

problem of children’s access to sexually explicit material on the Internet. As the

House Commerce Committee observed, while the Internet is ‘‘not yet as ‘invasive’ as broadcasting, its popularity and growth because of electronic commerce and expansive Federal subsidy programs make it widely accessible for minors.’’ House Report, at 9. ‘‘Moreover,’’ the Committee explained, ‘‘because of sophisticated, yet easy

to use navigating software, minors who can read and type are [as] capable of conducting Web searches as easily as operating a television remote.’’ Id. at 9-10. The

Committee found that purveyors of sexually explicit material ‘‘generally display

many unrestricted and sexually explicit images to advertise and entice the consumer

into engaging into a commercial transaction,’’ id. at 10, and that the availability of

such material to minors demonstrated a continued need for legislation to protect

children from the effects of unrestricted exposure to such material. The Committee

emphasized the government’s compelling interest in protecting children from exposure to sexually explicit material and noted that legislatures have long ‘‘sought to

shield children from exposure to material that could distort their views of sexuality,’’

whether by ‘‘requir[ing] pornography to be sold behind the counter at a drug store,

on blinder racks at a convenience store, in a shrink wrap at a news stand, or broadcast between certain hours of the night.’’ Id. at 11.

In the end, after examining the matter in hearings by committees in both Houses,

Congress found that the ‘‘widespread availability of the Internet’’ continues to

‘‘present[] opportunities for minors to access materials through the World Wide Web

in a manner that can frustrate parental supervision or control.’’ Pub. L. No. 105-

277, § 1402(1), 112 Stat. 2681-736 (1998). Moreover, it stated, ‘‘while the industry

has developed innovative ways to help parents and educators restrict material that

is harmful to minors though parental control protections and self-regulation, such

efforts have not provided a national solution to the problem of minors accessing

harmful material on the World Wide Web.’’ Id. § 1402(3). As a result, Congress

passed and the President signed into law the Child Online Protection Act (‘‘COPA’’),

Pub. L. No. 105-277, §§ 1401-1406, 112 Stat. 2681-736 to 2681-741 (1998) (to be codified at 47 U.S.C. § 231).

COPA authorized the imposition of criminal and civil penalties on any person who

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eign commerce by means of the World Wide Web, makes any communication for

commercial purposes that is available to any minor and that includes any material

that is harmful to minors.’’ 47 U.S.C. § 231(a)(1). Under COPA, ‘‘[a] person shall be

considered to make a communication for commercial purposes only if such person

is engaged in the business of making such communications,’’ 47 U.S.C.

§ 231(e)(2)(A). In addition, ‘‘material that is harmful to minors’’ includes only ‘‘matter . . .that is obscene as to minors.’’ 47 U.S.C. § 231(e)(6).

Congress established an ‘‘affirmative defense to prosecution’’ if a defendant ‘‘in

good faith, has restricted access by minors’’ to the material covered by the statute,

by requiring, among other things, the ‘‘use of a credit card, debit account, adult access code, or adult personal identification number’’ in order to access covered material. 47 U.S.C. § 231(c)(1)(A).

In passing COPA, Congress meant to ‘‘address the specific concerns raised by the

Supreme Court’’ in invalidating the CDA. House Report, at 12. Thus, COPA applied,

not to all Internet communications, but ‘‘only to material posted on the World Wide

Web.’’ Ibid.; see 47 U.S.C. § 231(a)(1). As a result, COPA ‘‘does not apply to content

distributed through other aspects of the Internet,’’ including e-mail, listservs,

USENET newsgroups, Internet relay chat, or real time remote utilization, such as

telnet, or non-Web forms of remote information retrieval, such as file transfer protocol (ftp) or gopher, all of which would have been affected by the CDA. House Report, at 12.

The character of the material covered by COPA was significantly different than

that covered by the CDA. The CDA applied to Internet communications that contained ‘‘indecent’’ or ‘‘patently offensive’’ sexual material. 47 U.S.C. §§ 223(a)(1)(B),

223(d) (Supp. II 1996). By contrast, COPA applied to material that is ‘‘harmful to

minors,’’ 47 U.S.C. § 231(a)(1), that is, material that not only contains a patently offensive depiction or description of sexual activities or sexual contact, but that the

average person, applying community standards, would find is designed to appeal to

or pander to the ‘‘prurient interest,’’ and, as important, lacks ‘‘serious literary, artistic, political, or scientific value for minors.’’ 47 U.S.C. § 231(e)(6). See House Report,

at 13.

Congress emphasized that, in using the ‘‘harmful to minors’’ formulation, it was

employing a standard that ‘‘has been tested and refined for thirty years to limit its

reach to materials that are clearly pornographic and inappropriate for minor children of the age groups to which it is directed.’’ House Report, at 28.

In addition, COPA applied only to those Web communications that are made ‘‘for

commercial purposes,’’ 47 U.S.C. § 231(a)(1), i.e., only if the person is ‘‘engaged in

the business’’ of making such communications. 47 U.S.C. § 231(e)(2).

Congress adopted COPA only after considering and rejecting alternative means of

protecting children from harmful material on the Web, emphasizing that such alternatives ‘‘generally involve[d] zoning and blocking techniques that rely on screening

material after it has been posted on the Internet or received by the end-user.’’ House

Report, at 16. In Congress’s opinion, it was ‘‘more effective to screen the material

prior to it being sent or posted to minors.’’ Ibid.

The President signed COPA into law on October 21, 1998. The following day, the

American Civil Liberties Union, joined by a number of individuals and organizations

that publish content on the World Wide Web, filed a suit in federal district court

in Philadelphia, contending that the statute violated their First and Fifth Amendment rights.

The Department vigorously defended the constitutionality of the statute. Nonetheless, on November 20, 1998 nine days before the statute would have gone into effect,

the district court entered a temporary restraining order (‘‘TRO’’) enjoining COPA’s

enforcement. After a five day evidentiary hearing in January, 1999, the court entered a preliminary injunction on February 1, 1999. Neither ruling affected materials that are ‘‘obscene’’ or that are child pornography.

The Department appealed the decision to the Third Circuit, making much the

same arguments as in the district court. The case was argued in November 1999.

We are waiting for the Third Circuit to rule on the cases.

In the meantime, we are prohibited from prosecuting ‘‘harmful to minors’’ material, although we are free to prosecute material on the Internet that is obscene and

that is child pornography.

3. As I have stated, the Department is vigorously enforcing our child pornography

laws as they apply to the Internet. We are also enforcing our obscenity laws, as they

apply to the Internet. We do investigate and prosecute transmission of obscenity

over the Internet, where appropriate. Last fall, the Assistant Attorney General for

the Criminal Division met with members of public interest groups who were concerned about the prevalence of Internet obscenity, particularly on World Wide Web

sites. At the meeting, the groups submitted a list of hundreds of Web sites that,

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in their view, were possibly illegal. The Department agreed to review these sites for

possible referral to an investigative agency.

After a thorough consideration of each referral, the Department concluded that

the vast majority could not be referred. In our view, many sites failed to meet the

three prong test for obscenity as delineated in the Miller v. California case. Nonetheless, several sites were deemed appropriate for further investigation and were referred to an investigative agency.

In conclusion, we all agree that we must continue to work to protect our children

and the public at large from those who use the Internet to exploit children and to

distribute illegal obscenity. We look forward to working with you in achieving that

goal.

Mr. LARGENT. Thank you, Mr. Gershel, and I would tell you that

if in fact this committee holds a hearing on child pornography, that

will be important testimony that you have just submitted and we

will reflect on that. However this hearing is about obscenity and

the lack of prosecutions thereof.

How long have you been at the Department of Justice Mr.

Gershel?

Mr. GERSHEL. Mr. Chairman, my background is I began with the

U.S. Attorney’s Office in Detroit in 1980. I served there for almost

20 years. I am currently there as both the criminal chief and the

first Assistant U.S. Attorney and I am down here in Washington

on a detail beginning in January for 1 year as a Deputy Assistant

Attorney General.

Mr. LARGENT. And how many obscenity cases has the Department prosecuted since 1996? Not child pornography; obscenity.

Mr. GERSHEL. I believe we have furnished statistics which would

indicate approximately 14, 15, perhaps as many as 20 obscenity

cases.

Mr. LARGENT. Those are obscenity cases exclusive of child pornography?

Mr. GERSHEL. Exclusive of child pornography.

Mr. LARGENT. In other words, child pornography had nothing to

do with the cases that were brought? It was strictly obscenity cases

in the last 4 years, 14?

Mr. GERSHEL. Excuse me 1 second.

Mr. LARGENT. The reason I ask the question, of course, Mr. Flores testified that sometimes they are tacked together.

Mr. GERSHEL. Mr. Chairman, if I might, Mr. Lord might be able

to specifically answer that question dealing with statistics.

Mr. LORD. Mr. Chairman, in all of those cases, obscenity counts

were charged and there were convictions. There may have been

other charges brought in those indictments, but obscenity counts

were charged and those are the statistics. There is no question

about obscenity cases being brought.

Mr. LARGENT. Okay. So we have testimony that between 1989

and 1995 the Justice Department’s Child Exploitation and Obscenity Section, which you are a part of today, actually not brought but

had 126 individual and corporate convictions with obscenity violations, not child pornography; 126 individual and corporate convictions for obscenity violations which resulted in the imposition or

award of more than $24 million in fines and forfeitures.

My question is: Since 1996, how many convictions have there

been of individuals or corporate entities for obscenity violations—

obscenity violations—and how many dollars in fines and forfeitures

have occurred?

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Mr. GERSHEL. Mr. Chairman, we don’t have those figures available. We can furnish them to the committee at a later time and

would be happy to do so.

Mr. LARGENT. I would take an estimate.

Mr. GERSHEL. We just don’t have the information. Of forfeiture,

we don’t have the information.

Mr. LARGENT. But you are responsible for the Child Exploitation

and Obscenity Section?

Mr. GERSHEL. I oversee that section.

Mr. LARGENT. Is it Terry?

Mr. GERSHEL. Yes, sir.

Mr. LARGENT. You are the head of the Child Exploitation and

Obscenities Section?

Mr. LORD. Yes, I am.

Mr. LARGENT. And you don’t have any idea?

Mr. LORD. I can get you the exact amount of forfeiture involved

in those cases, Mr. Chairman. I wasn’t asked to provide those

today.

Mr. LARGENT. That was the purpose of the hearing. I think you

got notice of that.

Let me go on. What is the problem? Is this a personnel and

money issue? Do you not have the personnel, don’t have the money

available to prosecute obscenity?

Mr. GERSHEL. Mr. Chairman, no, I think the answer is that the

current priorities are in fact child pornography, which is the worst,

most vile form of obscenity.

Mr. LARGENT. We all agree with that.

Mr. GERSHEL. That is where the resources of the Justice Department, both here in Washington and in the 94 U.S. Attorneys Offices, are being primarily devoted, to the prosecution, investigation

and conviction of those who victimize our children.

Mr. LARGENT. Exactly. So what happened to the $1 million that

the Congress appropriated to the Department of Justice to prosecute not child pornography but obscenity, what has happened to

that money? How have you spent that money?

Mr. GERSHEL. Mr. Chairman, I don’t want to quibble with you

but that money was earmarked, as I understand, for the prosecution of obscenity cases. We continue to take the view that child pornography is in fact obscenity, and that money was utilized to hire

more prosecutors to engage in those efforts.

We have instituted a number of sophisticated training programs

for prosecuting agencies around the country. We have used that

money to help buy equipment, laptop computers for people engaged

in that effort. That money was spent, well spent, and devoted to

the prosecution of the worst kind of obscenity.

Mr. LARGENT. Well, frankly, I am astounded that the gentleman

that is responsible for this investigation is confusing or merging

two terms, legal terms of art, that everybody understands are mutually exclusive. Obscenity is not the same as child pornography.

And so when Congress says we appropriate $1 million to prosecute

obscenity, we are not talking about child pornography. We gave you

money for that, too. We are talking about obscenity. What happened to the $1 million to prosecute obscenity, not child pornography?

57

Mr. GERSHEL. I believe I have answered your question, sir.

Mr. LARGENT. I don’t think you have answered my question.

Maybe you can submit that in writing at another time as well.

Mr. PICKERING. Mr. Chairman, I am afraid he did answer your

question, if you would yield just a second. They didn’t do it, they

don’t know anything about it.

Mr. LARGENT. I think I have just a little bit of time left before

I yield. Mr. Gershel, do you have any idea who the largest producers and distributors of hard-core, sexually explicit material are?

Mr. GERSHEL. As we sit here now, I could not give you that information, no.

Mr. LARGENT. Does the Department know?

Mr. GERSHEL. I believe that they have intelligent information on

some of those issues, yes.

Mr. LARGENT. But you are not sure?

Mr. GERSHEL. I believe they do.

Mr. LARGENT. Can you produce those?

Mr. GERSHEL. That would depend, sir. If those matters are under

investigation I would be reluctant to produce that information at

this point in time.

Mr. LARGENT. I would like to yield to the gentleman from Ohio,

Mr. Sawyer.

Mr. SAWYER. Thank you, Mr. Chairman. I guess I have some

substantial sympathy with the notion that there is no worse form

of obscenity than the exploitation of children for sexual purposes

and that I would take the view, Mr. Chairman, that the question

was asked several times and that in fact that $1 million was devoted to the pursuit of the worst form of obscenity that the Justice

Department deals with. It seems to me we sat here for—— Mr. PICKERING. Would the gentleman yield just for a second?

Mr. SAWYER. I am not going to yield. The Chairman went on at

some length, and we sat here this morning and we listened for extended periods of time to testimony about just how dangerous

pedophilia is, how threatening it is in the lives of ordinary people

who wind up being victimized by this sort of thing. And to argue

that that somehow this is not obscenity I think is to beg the question.

Having said that, this morning there was a good deal of testimony about the failure of the Justice Department to undertake the

kind of work that at least the panelists who were with us this

morning felt ought to have been undertaken. Would you care to

comment on that testimony that preceded you this morning?

Mr. GERSHEL. Congressman, a couple of comments. First of all,

the——

Mr. SAWYER. Could you bring the microphone closer? Those are

very directional mikes. You have really got to get it——

Mr. GERSHEL. First of all, I listened to most of the testimony,

both the statements and the questions, and it was clear to me and

I am sure to my colleagues that these are very strongly held beliefs. I certainly cannot begin to understand the trauma that the

gentleman went through who was addicted to pornography, and I

am not going to try in any way to argue with that. But what I

would like to say, though, is that we have established prosecutor

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ing with child pornography, and we believe those guidelines are appropriate under the circumstances. They deal with the investigation of what we believe to be major national and international pornographers. It has been our belief and experience that oftentimes

these groups, as has been mentioned, are funded by organized

crime activities. We believe that these investigations are time consuming, they are complex. They often involve charges in addition

to obscenity. They may involve RICO charges, money laundering offenses and things of that nature.

I should also indicate, if I can have one more moment to respond

to your question——

Mr. SAWYER. Sure.

Mr. GERSHEL. [continuing] that one of the comments made by

Mr. Flores I do happen to agree with. There were more than one,

but this one in particular. When discussing child pornography, I

believe he used the expression ‘‘tons of cases’’ and ‘‘shooting fish in

a barrel,’’ and unfortunately that probably is true.

Shortly after I came to Washington I asked for a tour of the Innocent Images project, and while touring the project we actually

had an online demonstration, and an FBI agent went on line into

chat rooms that had been determined to consist of people engaging

in this kind of activity; that is, child pornography. He posed as a

14-year-old girl. And sir, within 5 minutes, with no effort on his

part, he was able to engage in a conversation with this person.

Now, mind you, this is the middle of the work day, and with a little

more effort, I am sure he could have arranged a meeting with this

individual, and that was pure happenstance, pure chance, just part

of the tour of the Innocent Images. They had their hands full, unfortunately, with just keeping up with the work that is out there,

and that is again where the resources of the Department are going

to be devoted, to the prosecution of child pornography.

Mr. SAWYER. Thank you, Mr. Chairman. I yield back. I yield to

my friend from Mississippi.

Mr. PICKERING. Yes, and let me just, you know, again for the

record, not of policy, not of emotion, but as I understand it, the

law, that there is a difference in the law between child pornography and obscenity. And I can read the obscenity statute or the

definition of obscenity and I can read the definition of child pornography. You know, the Justice Department, I think, is fully aware

of this. I don’t want to——

Mr. SAWYER. I appreciate the gentleman’s comment and I do understand that. Reclaiming my time, would the witness care to respond to the assertion?

Mr. GERSHEL. Excuse me one moment. Congressman, we do

agree they are not the same, but it is our view that they do substantially overlap. So if I said it was exactly the same, that was

a misstatement. I stand corrected. We do believe there is a substantial overlap.

Mr. SAWYER. Mr. Chairman, I would like to withdraw from this

conversation, and perhaps the gentleman from Mississippi

could——

Mr. LARGENT. The gentleman’s time has expired. The Chair recognizes the gentleman from Mississippi for 5 minutes.

59

Mr. PICKERING. And I think you just made my point for me.

There is significant overlap. There is significant interaction. There

is significant contribution, one to the other. A culture of obscenity

leads to a greater culture and exploitation of children, and the Justice Department, although I would agree with them in making a

targeted effort on child pornography, and most everyone in the

country and on this committee would agree that child pornography

is the worst manifestation, but where this committee is trying to

go and trying to reach common ground with the Justice Department is that you cannot just address one.

You have probably seen at the Justice Department, I would think

you would agree, a rise in the exploitation of children and child

pornography over the last 3 to 4 years. Would that be an accurate

statement?

Mr. GERSHEL. Dramatic increase.

Mr. PICKERING. A dramatic increase. One of the reasons I believe

you have the dramatic increase is because of the lax enforcement

or the lax effort to address obscenity. They overlap, they are integrated, they contribute to each other. And until you address both,

you are going to continue to see a dramatic increase.

So maybe let us see if we can find common ground. If we, for ex- ample, we gave $1 million just for the enforcement and prosecution

of child obscenity, let us say that we gave you $10 million for the

enforcement, $50 million—you pick the number, whatever it would

take for you to do it—if we did that, would the Justice Department

policy change from being a child pornography-only to a child pornography and obscenity enforcement and prosecution policy?

Mr. GERSHEL. Congressman, with all due respect, I take some exception to the question because I don’t believe that CEOS is exclusively child pornography; primarily, but not exclusively. Also, I am

not in a position to comment about the change in Department policy.

Mr. PICKERING. Could I interrupt just a second? And, again, I

want to listen to you. One, you have been asked questions of what

is the status of your obscenity prosecutions since 1996 or who are

the major producers. You couldn’t even tell the committee those

two questions, which is an indication that that has not been your

priority nor your practice. I yield back.

Mr. GERSHEL. I would stipulate it has not been a priority. I

should indicate though that we have not ignored the problem.

There was a reference during the previous panel’s testimony to

a meeting that was had with the Assistant Attorney General and

some other individuals. Although I was not present for that meeting, I understand that during the course of that meeting a number

of Web sites, for example, were furnished to the Criminal Division

for review.

I should indicate that the CEOS section has undertaken a comprehensive review of those Web sites, taking several months, and

in fact a number of those have been referred to the FBI for further

investigation and they are currently under investigation.

Mr. PICKERING. Although in your testimony you say, After a thorough consideration of each referral, the Department concluded the

vast majority could not be referred. Nonetheless, several sites were

deemed appropriate for further investigation and were referred to

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an investigative agency.’’ So out of hundreds of examples, you referred how many for further investigation?

Mr. GERSHEL. Mr. Chairman, may I allow Mr. Lord to respond

to this question?

Mr. LORD. Congressman, I am not going to comment on the specific number that we referred. I do want to say that we gave proper

legal analysis to all of those referrals. That is not normally done.

Most of the time in these types of cases, the investigators conduct

that type of investigation, but we deemed it important enough for

section attorneys to make that review and to give their comments

to the FBI. Those comments were given to the FBI in terms of

what type of analysis we gave to it. We didn’t make any predisposition of how they should review the case. So it’s improper to say

that we only referred a small number. We actually turned over the

same material that was given to us to the FBI, but with our analysis.

I also want to comment—— Mr. PICKERING. Just interrupting real quickly, I just read from

your own testimony. You describe it in your own testimony.

Mr. LORD. I am just clarifying that, Congressman. Another point

I want to make about this and your trying to separate obscenity

from child pornography, the techniques for investigation of child

pornography and obscenity, of course, are very similar. It involves

online undercover activities; our work with the State and local

Internet crimes against children, training them to investigate online dissemination of the materials; our work with the European

Union, the Council of Europe. I also serve on Interpol Standing

Committee on Offenses Against Children. All involve these types of

techniques, working with Internet service providers, attempting to

have data retention, zero tolerance for this activity. All relate to obscenity just as well as child pornography.

So the funds that we were given to investigate online obscenity

were used to develop those types of techniques with the European

Union, with State and local investigators, which will improve our

efforts in investigating both obscenity and child pornography.

Mr. LARGENT. The gentleman’s time has expired. I recognize the

gentleman from Texas.

Mr. GREEN. Thank you, Mr. Chairman. I appreciate the Justice

Department being here today, and I apologize in some cases for the

adversarial relationship I guess we have, but obviously you know

how important it is for all of us. In fact, I have had the opportunity

to meet with the FBI in my own district and talk to the FBI investigator about child pornography on the Internet, what they can do

to help us. In fact, they have actually presented programs in our

public schools, and we are trying to do one for parents later on,

what parents can do to keep their children from being subjected to

pornography over the Internet.

And so I think it is a multifaceted effort, not just for the prosecution, but also with the FBI doing what they can, and also with

Internet service providers, I know; not to say one, but AOL also

helped us.

One of my questions, Mr. Gershel, is the Department of Justice,

FBI, in your latest efforts on catching pedophiles and using the

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eral Government expanding the enforcement in this area and what,

if anything, are you doing with local communities like, for example,

the State agency, the Department of Public Safety in Texas as well

as our local police agencies?

Mr. GERSHEL. Congressman, we have, I believe, entered into a

very strong and solid partnership with our State and local investigative and prosecutive agencies, and many of these task forces

that I referred to in my comments. They are devoted to looking for

instances of child pornography, but obscenity as well. So we believe

we have established a good relationship, and cases are being developed both at the Federal and the local level in these areas.

Mr. GREEN. The second question, let me ask—I know some of the

frustration often deals with our different roles we have; and, as a

Member of Congress, what I consider may be obscene is not necessarily what the folks across the street at the Supreme Court may

agree. I know we heard in an earlier panel Dr. Laaser talked about

what he considered—I may share that, but, again, the Justices of

the Supreme Court may not—one of the frustrations we have is

that in 1998 this committee—or 1997 to 1998 passed the COPA

Act, the Child On-line Protection Act, and I know also in your testimony you discussed a Community Decency Act that was struck

down by the Supreme Court. And now the COPA Act is being challenged, and the Justice Department is appealing that, and I asked

an earlier panel if there was any update on that. Is that still before

the appeals court?

Mr. GERSHEL. Still before the Third Circuit.

Mr. GREEN. Did the Department of Justice provide Congress with

any suggestions on how to improve the COPA legislation so that we

might pass legislation that would be perfected from constitutional

challenge?

Mr. GERSHEL. I am sorry, Congressman.

Mr. GREEN. Do you recall, did the Justice Department provide

Congress with any suggestions when we were considering the child

on-line pornography act on how we can try and pass legislation

that would withstand a constitutional challenge.

Mr. GERSHEL. I believe the Justice Department worked closely

with the committee to try and draft the statute that would withstand challenges, and I think we were at the table with this committee during that process.

Mr. GREEN. Mr. Chairman, I would like to ask unanimous consent to place in the record a letter sent on October 5, 1998, to our

Chair, that is, from the Department of Justice, discussing H.R.

3783, which is the Child On-line Protection Act which I think

might be—if the Justice Department’s suggestions have been

taken, we might have at least dealt with some of the issues that

are now before the appeals court.

Mr. LARGENT. Without objection.

[The information referred to follows:]

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64

65

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Mr. GREEN. Do you recall Congress adopting any of these suggestions that were made in this letter that is now in the record or do

you have a copy of this letter?

Mr. GERSHEL. I do not, sir.

Mr. GREEN. After reviewing it and looking at what I know about

the case, obviously, we made a decision—and, again, we vote for

lots of different reasons, but, again, our legislation we pass, we

have another branch of government that makes that decision for

us. And I may consider something unconstitutional or constitutional, obviously protection against pornography, but they may not

be shared by the folks that actually serve on the Supreme Court.

Did DOJ vigorously defend this law before the court that we

passed, the Child On-line Protection Act?

Mr. GERSHEL. I believe the Department was very vigorous in its

defense of this act both at the district court level and in the Third

Circuit in oral argument. I think a review of the government’s brief

in this matter would demonstrate the strong support we have given

to this legislation.

Mr. GREEN. It is my understanding our committee didn’t accept

the DOJ recommendations. In fact, if you could provide us in later

information to us what you know on that—again, that was our decision not to accept those, but, again, you know, we were well

aware, at least from this letter, that there were things in that act.

I voted for it. I may very well have been a cosponsor of it because

of my concern.

Mr. Chairman, I would also like to put in the record something

we pulled off the Internet at the FBI library, is available. Again,

I talked with my own local agents in Houston, and it is a Parents

Guide to Internet Safety.

As I said earlier, I would like to ask unanimous consent to place

this in the record because not only the Justice Department but also

the Law Enforcement Agency of the FBI is trying to do with InterVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00071 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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net safety. And, again, as a parent, it is important to us and someday be a grandparent.

If I could ask unanimous consent to put the Parents Guide to

Internet Safety into the record.

Mr. LARGENT. Without objection.

Mr. GREEN. Thank you, Mr. Chairman.

[The information referred to follows:]

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Mr. GREEN. With that, I would like to ask unanimous consent to

place my own statement in the record, and then I will yield back

the balance of my time.

Mr. LARGENT. Without objection. The gentleman yields back.

[The prepared statement of Hon. Gene Green follows:]

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXASMR. CHAIRMAN:

I do not believe that any member of this subcommittee supports the thriving

Internet marketplace of obscene images.

I am sure all the witnesses here today are going to provide us with ample evidence of the destructive nature this material can have on individuals and their families.

However, Congress has had a checkered past when we have attempted to limit

the spread of this material.

The Supreme Court continues to find fault with our efforts to regulate what they

consider ‘‘free speech.’’

Their continued decisions to allow very offensive material to circulate over the

Internet has crippled efforts designed to protect our children.

I now believe that Congress should intensify educational programs for parents to

teach them about the technology and material available to protect children.

I do want to commend the Department of Justice (DoJ) and the Federal Bureau

of Investigation (FBI) for their efforts to catch pedophiles on the Internet.

There is no greater danger to our children then a faceless friend who exists outside the knowledge of a parent. Pedophiles have discovered the Internet as the perfect place to pursue their criminal pleasure.

Their trade in child pornography and other obscene material is a threat to communities across this country. The federal government cannot be in every home,

school, and library where people may try to access this illegal material.

I believe we must empower parents to monitor their children’s on-line activities.

I have conducted community meeting with the ISP’s, phone companies, and the

FBI to teach children and parents about what they can do to protect their children.

These highlight the currently available blocking technology and information resources that parents can access free of charge to help protect their children on-line.

Mr. Chairman, it is unfortunate that as we seek to bridge the ‘‘digital divide’’ we

are actually making it easier for obscene material to flow into our communities like

never before.

I appreciate the Chairman holding this hearing and I look forward to the panel

discussions.

Mr. LARGENT. I want to thank Mr. Gershel for your attendance,

for your patience, and it is my understanding that there is just a

couple of follow-up questions, and we are done. And I would just

like to reiterate, and correct me if I am wrong, the Justice Department doesn’t need the Child On-line Protection Act to prosecute obscenity; is that correct? You were prosecuting obscenity prior to——

Mr. GERSHEL. That is correct.

Mr. LARGENT. Whatever the Third Circuit does is irrelevant in

terms of prosecuting obscenity, be it on the Internet or anywhere

else; is that correct?

Mr. GERSHEL. That is correct.

Mr. LARGENT. Neither does it need the CDA. You were prosecuting—we have testimony here in the ACLU versus Reno that

says the Justice Department itself communicated its view that it

was not necessary, CDA, that is. It was prosecuting on-line obscenity child pornography and child solicitation under existing laws and

would continue to do so.

Mr. GERSHEL. That is correct.

Mr. LARGENT. So the whole debate over the Child On-line Protection Act, CDA is irrelevant in terms of the job the Justice Department or is not doing on obscenity; is that correct?

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Let me ask this one other question, Mr. Gershel. How do you feel

when the obscenity industry says and refers to the oversight that

you are giving, the prosecution that you are giving and the industry refers to you as having a benign neglect of the industry?

Mr. GERSHEL. Obviously, I would take exception with that. I

don’t agree with that. We are—we continue to go after and investigate major distributors. I think over time we will have success

there. These cases take time. While I may not have the numbers

right now to satisfy this committee, I do know from working with

the section that there are cases under investigation that we believe

satisfy the guidelines and parameters we have established for the

investigation and prosecution of obscene pornographers.

Mr. LARGENT. I would like to ask also for—if you have those

guidelines written down—you mentioned earlier about the Department had guidelines. I would like to see those guidelines.

And, finally, you mentioned an effort with the local law enforcement agencies, and yet we had testimony on the previous panel

that indicated that prior to 1994, 1993, that there was a vigorous

effort by the Los Angeles Police Department conducting raids in

the San Fernando Valley and that that had virtually come to a stop

in the last 5 to 6 years. Do you have a comment on that?

Mr. GERSHEL. To back up to your first question on the guidelines,

they are published in the United States Attorneys Manual, Mr.

Chairman. I would be happy to get you a copy of those guidelines.

Second, while I can’t speak to the L.A. Experience, I have no

firsthand knowledge of that, I do know from firsthand experience

both in the district where I come from and in my experience here

thus far that there is a partnership with State and local. They are

involved in these cases. We are working with them.

It is not unusual at all for many State cases to go through the

Federal system. It is not unusual, for example, for State prosecutors to become Special Assistant U.S. Attorneys, to prosecute those

cases in Federal court. It is not unusual for Federal prosecutors to

be cross-designated as local district attorneys for prosecution of

State cases. So there is this cross-pollination going on back and

forth every day as it concerns these matters.

So, again, I can’t speak to the L.A. Experience, but it is certainly

a very positive working relationship I believe we have today with

State and local entities.

Mr. LARGENT. Concerning the fact that about, some people estimate, 2,000 new sex videos are produced in the San Fernando Valley every month, that might be something you want to look into.

I will yield for a brief question from the gentleman from Mississippi.

Mr. GREEN. Mr. Chairman, I thought it was customary——

Mr. LARGENT. I didn’t know you had another question.

Mr. GREEN. Thank you, Mr. Chairman.

Mr. Gershel, one of my frustrations I guess—and if you share it

with me—is that as Justice Stewart said one time he knows what

obscenity is when he sees it. It is just hard to define it. Does the

fuzziness of the definition of obscenity make it more difficult for

prosecutions to stick? And also I can understand why it is easier

oftentimes to prosecute child pornography because that is not subVerDate 11-MAY-2000 08:45 Mar 13, 2001 Jkt 066874 PO 00000 Frm 00078 Fmt 6633 Sfmt 6602 E:\HEARINGS\64763.TXT pfrm09 PsN: 64763
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ject to some of those fuzziness definitions. Can you share your feelings on that with us?

Mr. GERSHEL. Every Federal prosecutor, Congressman, is taught

from day one that he or she is not to engage in a prosecution unless he or she believes a substantial likelihood of success on the

merits. That is an appropriate burden for prosecutors to have.

When it comes to the examination and review of cases dealing with

obscenity, prosecutors are required to review that material and

make a determination on their own whether or not they believe

that material would, in fact, violate whatever community standards

this case would be interfacing with.

That is a difficult burden. People might differ on that. We might

all find certain material very distasteful. We all know, though, that

all pornography is not obscenity. Pornography per se is not illegal

unless it is obscene. Prosecutors have to engage in that kind of

analysis every time they look at a case dealing with obscenity.

So, yes, it is a challenge. It is difficult. We might disagree on

that, but that prosecutor has to be satisfied in his or her mind that

that case will pass muster with the jury beyond a reasonable

doubt. It is a hard burden.

Mr. GREEN. Is that generally the process the DOJ has—I assume

that is in their manual—on whether prosecution should be pursued? Is that generally what you do?

Mr. GERSHEL. That is the policy of the Justice Department in

every case that we undertake.

Mr. GREEN. Thank you, Mr. Chairman. I yield back.

Mr. LARGENT. I thank the gentleman.

I yield to the gentleman from Mississippi for a final question,

and we will finish the hearing.

Mr. PICKERING. For the panel and for my friend from Texas, just

let the record show, between 1989 and 1995 the Justice Department’s Child Exploitation and Obscenity section had 126 convictions, prosecutions and convictions of obscenity, not child pornography but just slowly targeting obscenity and $24 million in fines

and forfeitures. The problem that I think we are dealing with is,

it seems to be around 1995 and after, the Justice Department

changed their policy and their priorities with—in relation to obscenity.

So just to follow up on that, Mr. Gershel, in your testimony you

say we do investigate and prosecute transmission of obscenity over

the Internet, but then you have a very important qualifier, ‘‘where

appropriate’’. Since 1996, can you name one case or how many

cases you found it appropriate during this period of tremendous explosion of obscenity and pornography and child pornography—since

1996, how many cases have you found it appropriate—given the

fact that you had over 126 convictions before 1995, how many have

you had since 1996?

Mr. GERSHEL. I believe in the written statement, Congressman,

I cited some specific cases. But I should also indicate, again without meaning any disrespect for that same time period, the number

of convictions for child pornography, people engaging in that activity, trafficking with children has exploded. In 1999 alone, 525 convictions—an increase of a hundred convictions from the previous

year.

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Mr. PICKERING. Mr. Gershel, let me again try to find common

ground. It seems like you are losing—you are fighting a losing battle on child pornography. You are doing—you are fighting hard.

You are doing all you can on child pornography, but it seems like

your strategy is not working. The situation is getting worse, not

better. Would you reconsider having a dual front, dual effort where

you emphasize equally both obscenity and child pornography?

Would you consider a change in strategy, a change in policy, and

then can Congress help you implement a new policy where you

equally emphasize obscenity as well as child pornography?

Mr. GERSHEL. Congressman, I have some difficulty with the

premise of the question because there is suggestion that, given the

explosion of child pornography, how successful have we really been.

I would like to answer that, first, two ways.

First of all, every conviction we get is one less person engaged

in that behavior; and, second, it is difficult to quantify the deterrent impact those convictions have. We don’t know, for example,

how many people who would have otherwise engaged in that conduct have not.

In terms of the second part of your question, I believe we have

a strategy for the prosecution of obscenity cases. It is obviously a

strategy the Congressman is not content with and not happy with

but——

Mr. PICKERING. Can you name me one prosecution since 1996 of

obscenity?

Mr. GERSHEL. I believe I have cited some cases—— Mr. PICKERING. You have not cited one case. Name me one case

right now.

Mr. GERSHEL. I can follow up that later to the Congressman with

cases that we prosecuted.

Mr. PICKERING. Would it be less than five?

Mr. GERSHEL. I am not going to commit. I don’t know.

Mr. PICKERING. Versus 126? If industry calls your approach benign neglect——

Mr. GERSHEL. Congressman, our priorities are where they ought

to be today I believe.

Mr. PICKERING. What if I could help you have dual emphasis, try

a new approach, would you consider that?

Mr. GERSHEL. If you have suggestions and you would like to

make suggestions to the Justice Department, we are more than

willing to entertain those suggestions and look at them, that I assure you.

Mr. PICKERING. You would be willing—the Justice Department

would be willing to consider, if Congress made it a higher priority

and gave you the resources to do so, that you would target both obscenity and child pornography?

Mr. GERSHEL. No. I agree we would engage in a dialog with the

Congressmen to see what the strategy is.

Mr. PICKERING. The signals you are sending right now are very

disturbing. And, with that, let me yield back my time.

Mr. LARGENT. I thank the gentleman.

Again, thank you for your patience. Thank you for your attendance. The hearing is concluded.

[Whereupon, at 1:20 p.m., the subcommittee was adjourned.]

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