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[Congressional Record Volume 158, Number 115 (Tuesday, July 31, 2012)]
[House]
[Pages H5507-H5510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                      CHILD PROTECTION ACT OF 2012

  Mr. SMITH of Texas. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 6063) to amend title 18, United States Code, with 
respect to child pornography and child exploitation offenses.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6063

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Child Protection Act of 
     2012''.

     SEC. 2. ENHANCED PENALTIES FOR POSSESSION OF CHILD 
                   PORNOGRAPHY.

       (a) Certain Activities Relating to Material Involving the 
     Sexual Exploitation of Minors.--Section 2252(b)(2) of title 
     18, United States Code, is amended by inserting after ``but 
     if'' the following: ``any visual depiction involved in the 
     offense involved a prepubescent minor or a minor who had not 
     attained 12 years of age, such person shall be fined under 
     this title and imprisoned for not more than 20 years, or 
     if''.
       (b) Certain Activities Relating to Material Constituting or 
     Containing Child Pornography.--Section 2252A(b)(2) of title 
     18, United States Code, is amended by inserting after ``but, 
     if'' the following: ``any image of child pornography involved 
     in the offense involved a prepubescent minor or a minor who 
     had not attained 12 years of age, such person shall be fined 
     under this title and imprisoned for not more than 20 years, 
     or if''.

     SEC. 3. PROTECTION OF CHILD WITNESSES.

       (a) Civil Action To Restrain Harassment of a Victim or 
     Witness.--Section 1514 of title 18, United States Code, is 
     amended--
       (1) in subsection (b)--
       (A) in paragraph (1)--
       (i) by inserting ``or its own motion,'' after ``attorney 
     for the Government,''; and
       (ii) by inserting ``or investigation'' after ``Federal 
     criminal case'' each place it appears;
       (B) by redesignating paragraphs (2), (3), and (4) as 
     paragraphs (3), (4), and (5), respectively;
       (C) by inserting after paragraph (1) the following:
       ``(2) In the case of a minor witness or victim, the court 
     shall issue a protective order prohibiting harassment or 
     intimidation of the minor victim or witness if the court 
     finds evidence that the conduct at issue is reasonably likely 
     to adversely affect the willingness of the minor witness or 
     victim to testify or otherwise participate in the Federal 
     criminal case or investigation. Any hearing regarding a 
     protective order under this paragraph shall be conducted in 
     accordance with paragraphs (1) and (3), except that the court 
     may issue an ex parte emergency protective order in advance 
     of a hearing if exigent circumstances are present. If such an 
     ex parte order is applied for or issued, the court shall hold 
     a hearing not later than 14 days after the date such order 
     was applied for or is issued.'';
       (D) in paragraph (4), as so redesignated, by striking 
     ``(and not by reference to the complaint or other 
     document)''; and
       (E) in paragraph (5), as so redesignated, in the second 
     sentence, by inserting before the period at the end the 
     following: ``, except that in the case of a minor victim or 
     witness, the court may order that such protective order 
     expires on the later of 3 years after the date of issuance or 
     the date of the eighteenth birthday of that minor victim or 
     witness''; and

[[Page H5508]]

       (2) by striking subsection (c) and inserting the following:
       ``(c) Whoever knowingly and intentionally violates or 
     attempts to violate an order issued under this section shall 
     be fined under this title, imprisoned not more than 5 years, 
     or both.
       ``(d)(1) As used in this section--
       ``(A) the term `course of conduct' means a series of acts 
     over a period of time, however short, indicating a continuity 
     of purpose;
       ``(B) the term `harassment' means a serious act or course 
     of conduct directed at a specific person that--
       ``(i) causes substantial emotional distress in such person; 
     and
       ``(ii) serves no legitimate purpose;
       ``(C) the term `immediate family member' has the meaning 
     given that term in section 115 and includes grandchildren;
       ``(D) the term `intimidation' means a serious act or course 
     of conduct directed at a specific person that--
       ``(i) causes fear or apprehension in such person; and
       ``(ii) serves no legitimate purpose;
       ``(E) the term `restricted personal information' has the 
     meaning give that term in section 119;
       ``(F) the term `serious act' means a single act of 
     threatening, retaliatory, harassing, or violent conduct that 
     is reasonably likely to influence the willingness of a victim 
     or witness to testify or participate in a Federal criminal 
     case or investigation; and
       ``(G) the term `specific person' means a victim or witness 
     in a Federal criminal case or investigation, and includes an 
     immediate family member of such a victim or witness.
       ``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of 
     paragraph (1), a court shall presume, subject to rebuttal by 
     the person, that the distribution or publication using the 
     Internet of a photograph of, or restricted personal 
     information regarding, a specific person serves no legitimate 
     purpose, unless that use is authorized by that specific 
     person, is for news reporting purposes, is designed to locate 
     that specific person (who has been reported to law 
     enforcement as a missing person), or is part of a government-
     authorized effort to locate a fugitive or person of interest 
     in a criminal, antiterrorism, or national security 
     investigation.''.
       (b) Sentencing Guidelines.--Pursuant to its authority under 
     section 994 of title 28, United States Code, and in 
     accordance with this section, the United States Sentencing 
     Commission shall review and, if appropriate, amend the 
     Federal sentencing guidelines and policy statements to 
     ensure--
       (1) that the guidelines provide an additional penalty 
     increase above the sentence otherwise applicable in Part J of 
     Chapter 2 of the Guidelines Manual if the defendant was 
     convicted of a violation of section 1591 of title 18, United 
     States Code, or chapters 109A, 109B, 110, or 117 of title 18, 
     United States Code; and
       (2) if the offense described in paragraph (1) involved 
     causing or threatening to cause physical injury to a person 
     under 18 years of age, in order to obstruct the 
     administration of justice, an additional penalty increase 
     above the sentence otherwise applicable in Part J of Chapter 
     2 of the Guidelines Manual.

     SEC. 4. SUBPOENAS TO FACILITATE THE ARREST OF FUGITIVE SEX 
                   OFFENDERS.

       (a) Administrative Subpoenas.--
       (1) In general.--Section 3486(a)(1) of title 18, United 
     States Code, is amended--
       (A) in subparagraph (A)--
       (i) in clause (i), by striking ``or'' at the end;
       (ii) by redesignating clause (ii) as clause (iii); and
       (iii) by inserting after clause (i) the following:
       ``(ii) an unregistered sex offender conducted by the United 
     States Marshals Service, the Director of the United States 
     Marshals Service; or''; and
       (B) in subparagraph (D)--
       (i) by striking ``paragraph, the term'' and inserting the 
     following: ``paragraph--
       ``(i) the term'';
       (ii) by striking the period at the end and inserting ``; 
     and''; and
       (iii) by adding at the end the following:
       ``(ii) the term `sex offender' means an individual required 
     to register under the Sex Offender Registration and 
     Notification Act (42 U.S.C. 16901 et seq.).''.
       (2) Technical and conforming amendments.--Section 3486(a) 
     of title 18, United States Code, is amended--
       (A) in paragraph (6)(A), by striking ``United State'' and 
     inserting ``United States'';
       (B) in paragraph (9), by striking ``(1)(A)(ii)'' and 
     inserting ``(1)(A)(iii)''; and
       (C) in paragraph (10), by striking ``paragraph (1)(A)(ii)'' 
     and inserting ``paragraph (1)(A)(iii)''.
       (b) Judicial Subpoenas.--Section 566(e)(1) of title 28, 
     United States Code, is amended--
       (1) in subparagraph (A), by striking ``and'' at the end;
       (2) in subparagraph (B), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(C) issue administrative subpoenas in accordance with 
     section 3486 of title 18, solely for the purpose of 
     investigating unregistered sex offenders (as defined in such 
     section 3486).''.

     SEC. 5. INCREASE IN FUNDING LIMITATION FOR TRAINING COURSES 
                   FOR ICAC TASK FORCES.

       Section 102(b)(4)(B) of the PROTECT Our Children Act of 
     2008 (42 U.S.C. 17612(b)(4)(B)) is amended by striking 
     ``$2,000,000'' and inserting ``$4,000,000''.

     SEC. 6. NATIONAL COORDINATOR FOR CHILD EXPLOITATION 
                   PREVENTION AND INTERDICTION .

       Section 101(d)(1) of the PROTECT Our Children Act of 2008 
     (42 U.S.C. 17611(d)(1)) is amended--
       (1) by striking ``to be responsible'' and inserting the 
     following: ``with experience in investigating or prosecuting 
     child exploitation cases as the National Coordinator for 
     Child Exploitation Prevention and Interdiction who shall be 
     responsible''; and
       (2) by adding at the end the following: ``The National 
     Coordinator for Child Exploitation Prevention and 
     Interdiction shall be a position in the Senior Executive 
     Service.''

     SEC. 7. REAUTHORIZATION OF ICAC TASK FORCES.

       Section 107(a) of the PROTECT Our Children Act of 2008 (42 
     U.S.C. 17617(a)) is amended--
       (1) in paragraph (4), by striking ``and'';
       (2) in paragraph (5), by striking the period at the end; 
     and
       (3) by inserting after paragraph (5) the following:
       ``(6) $60,000,000 for fiscal year 2014;
       ``(7) $60,000,000 for fiscal year 2015;
       ``(8) $60,000,000 for fiscal year 2016;
       ``(9) $60,000,000 for fiscal year 2017; and
       ``(10) $60,000,000 for fiscal year 2018.''.

     SEC. 8. CLARIFICATION OF ``HIGH-PRIORITY SUSPECT''.

       Section 105(e)(1)(B)(i) of the PROTECT Our Children Act of 
     2008 (42 U.S.C. 17615(e)(1)(B)(i)) is amended by striking 
     ``the volume'' and all that follows through ``or other''.

     SEC. 9. REPORT TO CONGRESS.

       Not later than 90 days after the date of enactment of this 
     Act, the Attorney General shall submit to the Committee on 
     the Judiciary of the House of Representatives and the 
     Committee on the Judiciary of the Senate a report on the 
     status of the Attorney General's establishment of the 
     National Internet Crimes Against Children Data System 
     required to be established under section 105 of the PROTECT 
     Our Children Act of 2008 (42 U.S.C. 17615).

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas (Mr. Smith) and the gentleman from Virginia (Mr. Scott) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Texas.

                             General Leave

  Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous materials on H.R. 6063, the bill 
currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Internet child pornography may be the fastest-growing crime in 
America, increasing by an average of 150 percent per year. Every day, 
online criminals prey on America's children with virtual anonymity, and 
according to recent estimates there are as many as 100,000 fugitive sex 
offenders in the U.S. Congress has taken important steps to combat 
child exploitation, including the passage of the Adam Walsh Act in 2006 
and the PROTECT Our Children Act in 2008.
  But our work is not yet done.
  That is why Representative Debbie Wasserman Schultz and I introduced 
H.R. 6063, the Child Protection Act of 2012, that provides law 
enforcement officials with important tools and additional resources to 
combat the growing threat of child pornography and exploitation. This 
bipartisan legislation increases penalties for child pornography 
offenses that involve young children and strengthens protections for 
child witnesses and victims.

                              {time}  2000

  The bill allows a Federal court to issue a protective order if it 
determines that a child victim or witness is being harassed or 
intimidated and imposes criminal penalties for a violation of that 
protective order. The Child Protection Act ensures that paperwork does 
not stand in the way of the apprehension of dangerous criminals. This 
bill gives the U.S. marshals limited subpoena authority to locate and 
apprehend fugitive sex offenders.
  Unlike the other 300 Federal administrative subpoena powers, which 
are used at the beginning of a criminal investigation, a marshal's use 
of subpoena authority under this bill will occur only after, and only 
after, these actions occur:
  The fugitive is arrested pursuant to a judge-issued warrant, indicted 
for committing a sex offense, convicted by

[[Page H5509]]

proof beyond a reasonable doubt, and sentenced in a court of law;
  The fugitive is required to register as a sex offender;
  The fugitive pleas or otherwise violates their registration 
requirements; and
  A State or Federal arrest warrant is issued for violation of the 
registration requirements.
  This narrow subpoena authority is critical to help take convicted sex 
offenders off the streets.
  H.R. 6063 also reauthorizes, for 5 years, the Internet Crimes Against 
Children task forces. The ICAC task forces were launched in 1998 and 
officially authorized by Congress in the PROTECT Our Children Act of 
2008.
  The ICAC Task Force Program is a national network of 61 coordinated 
task forces that represent over 3,000 Federal, State, and local law 
enforcement and prosecutorial agencies dedicated to child exploitation 
investigations. Since 1998, the ICAC task forces have reviewed more 
than 280,000 complaints of alleged child sexual abuse and arrested more 
than 30,000 individuals. The Child Protection Act increases the cap on 
grant funds for ICAC training programs and makes several clarifications 
to provisions enacted as a part of the PROTECT Our Children Act.
  Finally, the bill requests a report from the Justice Department on 
implementation of a national Internet crimes against children data 
system. Yesterday, Senator Blumenthal and Senator Cornyn introduced the 
companion bill in the Senate. This bipartisan, bicameral bill is 
supported by a number of outside organizations, which include the 
National Center for Missing and Exploited Children, the Major City 
Chiefs of Police, Futures Without Violence, the Fraternal Order of 
Police, the International Association of Chiefs of Police, the National 
Alliance to End Sexual Violence, the National District Attorneys 
Association, the National White Collar Crime Center, the National 
Sheriffs' Association, the Surviving Parents Coalition, the Rape Abuse 
Incest National Network, the National Alliance to End Sexual Violence, 
and the National Association to Protect Children.
  Once again, Mr. Speaker, I want to thank Congresswoman Debbie 
Wasserman Schultz for her great work on this issue, and I urge my 
colleagues to join me in support of this important legislation to 
protect America's children.
  I reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may 
consume.
  I rise in opposition to H.R. 6063. While I can appreciate the 
apparent attempt in the bill to better protect children who are victims 
of sexual abuse, it not only fails to achieve that objective, but it 
also presents serious constitutional concerns and other problematic 
provisions.
  First, the bill creates a rebuttable presumption in 18 U.S.C. section 
1514 that, if an individual posts a photograph or personal identifying 
information about a person subject to a protective order, it ``serves 
no legitimate purpose,'' which is an essentiable element of the offense 
of harassment and intimidation. This rebuttable presumption would shift 
the burden of proof in these cases from the accuser to the accused by 
requiring the accused to prove that posting of the photograph or 
information about the person served a legitimate purpose. Therefore, 
under current law and the fundamental principles of the Constitution, 
the burden is on the accuser to prove beyond a reasonable doubt this 
element of the offense, not the obligation of the accused to prove his 
innocence. This provision violates the constitutional rights of 
defendants who may be innocent of the underlying charge and who are 
entitled to be presumed innocent.
  The coincidental inclusion of a protected person in a family photo 
posted over Facebook or an email, which may be unintentional and 
coincidental, should not be presumed to be a crime.
  What's wrong with the normal process by which the accuser has to show 
that the posting was for harassment or intimidation? To make an 
innocent person prove his innocence is not only unnecessary and unfair, 
but unconstitutional.
  In Francis v. Franklin, a 1985 Supreme Court case, the government 
argued that the constitutional issue regarding the rebuttable 
presumption there was overcome by the defendant's ability to rebut the 
presumption. The Supreme Court, however, found that argument 
unpersuasive. The Court said that a mandatory presumption instructs the 
jury that it must infer the presumed fact if the State presumes certain 
predicate facts. Such a presumption can be conclusive or rebuttable. 
The key is whether it is mandatory, that is, whether the jury must make 
a presumption, possibly subject to rebuttal, if the State proves 
certain facts.
  In light of the fact that section 3(d)(2) of H.R. 6063 explicitly 
mandates the court shall presume there was no legitimate purpose, this 
provision is exactly the kind of mandatory rebuttable presumption that 
the Court repudiated in the Francis decision.
  Another problem with the bill is it adds a new criminal offense of 
violating a protective order. Minor activities that are not intended to 
cause harm or distress, such as a phone call or an email, can result in 
a Federal criminal charge, not as a violation of Federal law protecting 
a witness from harassment or intimidation--there are already laws 
against that--but as a technical violation of a civil order.

  Judges already have plenty of laws and authority to protect victims 
and witnesses. There's already a comprehensive statutory scheme in 
place to assist judges and law enforcement in protecting witnesses in 
Federal criminal proceedings. In addition to Federal criminal 
provisions with heavy penalties and the authority for judges to enter 
protective orders for the protection of all witnesses, including 
children, the judges have immense contempt and other powers to 
accomplish this goal. Thus, the additional criminal offense is 
unnecessary and unproductive. We should stop adding unnecessary 
criminal laws to the criminal code.
  In the previous Congress, we held hearings regarding the general 
problem of over-criminalization of conduct and the over-federalization 
of criminal law. Members of both parties then expressed concern over 
this. We already have over 4,000 Federal criminal offenses in the code, 
along with an estimated 300,000 Federal regulations that impose 
criminal penalties, often without clearly setting out what will be 
subject to criminal liability.
  This bill is yet another example of adding more unnecessary crimes 
and penalties to the Federal code. Moreover, such a provision moves the 
protection responsibility from the judge in the case to a prosecutor 
who decides when there is a violation and when to bring charges for the 
violations. Given the fact that many proceedings involving child 
witnesses also involve family members of the child witness in 
emotionally charged situations, the addition of more criminal 
provisions to this mix is not helpful.
  This provision allows the imposition of a Federal felony up to 5 
years in prison for a violation. It is unnecessary, overbroad, and 
harsh, especially given a restraining order can be violated by simply 
making an innocent phone call.
  A further problem with H.R. 6063 is that it would give U.S. marshals 
the authority to issue administrative subpoenas to investigate 
unregistered sex offenders. I'm not convinced that extending this 
extraordinary ex parte judicial authority is appropriate.
  Research has clearly shown that registered sex offenders who may not 
be compliant with the law are actually no more apt to commit a criminal 
offense than those who are compliant. So there is no compelling reason 
to create a special authority for U.S. marshals in the case of 
registered or unregistered sex offenders. There's no urgent or imminent 
threat context in rounding up alleged noncompliant sex offenders which, 
as we said, are no more likely to commit a crime than those who are 
compliant with all of the technicalities of the law.

                              {time}  2010

  The existing statutory scheme for administrative subpoenas for law 
enforcement focuses on extreme situations, such as the Presidential 
threat protection administrative subpoena. We approved that power a few 
years ago to assist in the protection of the President when the 
director of the Secret

[[Page H5510]]

Service has determined that an imminent threat is posed against the 
life of the President of the United States, and he has to certify the 
same to the Secretary of the Treasury. And the Attorney General has the 
same kind of power in child exploitation cases. Both are Cabinet-level 
officials.
  I offered an amendment to remove the provisions extending this type 
of judicial authority to the U.S. Marshals Service. Upon the failure of 
that amendment, I then offered an amendment to continue limiting the 
authority to issue administrative subpoenas to Cabinet officials to 
ensure that this extraordinary judicial power is used discreetly and 
only in circumstances where it is absolutely warranted. Those 
amendments were defeated; and, therefore, this bill gives more power to 
the Marshals Service in cases where there is no proven need for the 
power, more power than the Secret Service has when faced with an 
imminent threat to the President of the United States.
  Despite serious constitutional issues and these other problems, this 
bill was introduced on June 29 and was marked up in committee 12 days 
later, on July 10, which was the very next day that Congress was in 
session. Clearly these provisions need more consideration. For these 
reasons, I urge that we defeat H.R. 6063.
  I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I have no further requests for time 
on this side and reserve the balance of my time.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield such time as she may 
consume to the gentlelady from Florida (Ms. Wasserman Schultz), a 
cosponsor of the bill.
  Ms. WASSERMAN SCHULTZ. Mr. Speaker, I rise today in support of the 
Child Protection Act of 2012, which I am honored to cosponsor with my 
good friend from Texas, Chairman Lamar Smith. Chairman Smith and I are 
proof-positive of what bipartisan working relationships can accomplish, 
especially because we both agree that protecting the safety and well-
being of our Nation's children is our highest priority. That's why I am 
so pleased that this bill, which was reported favorably out of 
committee on voice vote, is before us today. This is an opportunity to 
make a real difference in the lives of children nationwide, thousands 
of whom are plagued by abuse, terror, and assaults that we cannot even 
imagine.
  In 2008, I was honored to sponsor the PROTECT Our Children Act of 
2008, which provides the safety net and resources the law enforcement 
agents who fight child sexual predators so desperately need. This 
commonsense bill builds on the progress that we started in PROTECT to 
ensure that law enforcement can combat one of the fastest-growing 
crimes in the United States, child pornography.
  We must ensure that investigators have every available resource to 
track down predators and protect our children. This bill ensures that 
paperwork does not stand in the way of protecting our kids.
  Mr. Speaker, I have learned far too much about the world of child 
pornography since I first took on this cause 4 years ago. There are 
many aspects of it that are disturbing beyond words to describe, like 
the fact that in a survey of convicted offenders, more than 83 percent 
of them had images of children younger than 12 years old, and almost 20 
percent of them had images of babies and toddlers who were less than 3 
years old. And let's remember that these aren't just images of naked 
children. These are crime scene photographs and videos taken of 
children being beaten, raped, and abused beyond our worst nightmares 
for the sexual pleasure of the person looking at the photo or video.
  Let's also remember that these are children who are often being 
victimized by someone in their circle of trust, someone who was 
supposed to protect them, and someone who, instead, chose to do them 
harm. These children only have the law to protect them because their 
protectors failed them and caused them harm.
  While it's not often that we have an opportunity to pass a bill here 
that quite literally means the difference between life or death, this 
is one of those times. That's why, as a Member of Congress, I know 
that I, as well as Chairman Smith and the Members of Congress here 
today fighting to protect the children of this country, will stand 
strong and continue to press forward on their behalf.

  I am proud and honored to be the lead Democratic sponsor of this 
bill, and I am thankful to my friend Chairman Smith for his continued 
leadership and support on this crucial cause.
  While the chairman listed some of the organizations that are 
supporting this bill, I will add some others. This bill is supported by 
the Rape, Abuse, and Incest National Network; the National Council of 
Jewish Women; Men Can Stop Rape; and the Florida Council Against Sexual 
Violence, among the other worthy and proud organizations that Chairman 
Smith listed.
  We are grateful to all of these organizations for their endorsement 
of this bill and for their continued support for all victims of sexual 
assault and abuse. I urge all of my colleagues to join us in supporting 
this critical legislation.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield back the balance of my 
time.
  Mr. SMITH of Texas. Mr. Speaker, I yield back the balance of my time 
as well.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Texas (Mr. Smith) that the House suspend the rules and 
pass the bill, H.R. 6063.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. SMITH of Texas. Mr. Speaker, I object to the vote on the ground 
that a quorum is not present and make the point of order that a quorum 
is not present.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.
  The point of no quorum is considered withdrawn.

                          ____________________
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