Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Child Obscenity and
Pornography Prevention Act of 2002’’.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not
entitled to protection under the First Amendment
under Miller v. California, 413 U.S. 15 (1973) (ob-
scenity), or New York v. Ferber, 458 U.S. 747
(1982) (child pornography) and thus may be prohib-
ited.
(2) The Government has a compelling state in-
terest in protecting children from those who sexually
exploit them, including both child molesters and
child pornographers. ‘‘The prevention of sexual ex-
ploitation and abuse of children constitutes a gov-
ernment objective of surpassing importance,’’ New
York v. Ferber, 458 U.S. 747, 757 (1982) (empha-
sis added), and this interest extends to stamping out
the vice of child pornography at all levels in the dis-
tribution chain. Osborne v. Ohio, 495 U.S. 103, 110
(1990).
(3) The Government thus has a compelling in-
terest in ensuring that the criminal prohibitions
against child pornography remain enforceable and
effective. ‘‘[T]he most expeditious if not the only
practical method of law enforcement may be to dry
up the market for this material by imposing severe
criminal penalties on persons selling, advertising, or
otherwise promoting the product.’’ Ferber, 458 U.S.
at 760.
(4) In 1982, when the Supreme Court decided
Ferber, the technology did not exist to: (A) create
depictions of virtual children that are indistinguish-
able from depictions of real children; (B) create de-
pictions of virtual children using compositions of real
children to create an unidentifiable child; or (C) dis-
guise pictures of real children being abused by mak-
ing the image look computer generated.
(5) Evidence submitted to the Congress, includ-
ing from the National Center for Missing and Ex-
ploited Children, demonstrates that technology al-
ready exists to disguise depictions of real children to
make them unidentifiable and to make depictions of
real children appear computer generated. The tech-
nology will soon exist, if it does not already, to make
depictions of virtual children look real.
(6) The vast majority of child pornography
prosecutions today involve images contained on com-
puter hard drives, computer disks, and/or related
media.
(7) There is no substantial evidence that any of
the child pornography images being trafficked today
were made other than by the abuse of real children.
Nevertheless, technological advances since Ferber
have led many criminal defendants to suggest that
the images of child pornography they possess are not
those of real children, insisting that the government
prove beyond a reasonable doubt that the images are
not computer-generated. Such challenges will likely
increase after the Ashcroft v. Free Speech Coalition
decision.
(8) Child pornography circulating on the Inter-
net has, by definition, been digitally uploaded or
scanned into computers and has been transferred
over the Internet, often in different file formats,
from trafficker to trafficker. An image seized from
a collector of child pornography is rarely a first-gen-
eration product, and the retransmission of images
can alter the image so as to make it difficult for
even an expert conclusively to opine that a particular
image depicts a real child. If the original image has
been scanned from a paper version into a digital for-
mat, this task can be even harder since proper fo-
rensic delineation may depend on the quality of the
image scanned and the tools used to scan it.
(9) The impact on the government’s ability to
prosecute child pornography offenders is already evi-
dent. The Ninth Circuit has seen a significant ad-
verse effect on prosecutions since the 1999 Ninth
Circuit Court of Appeals decision in Free Speech
Coalition. After that decision, prosecutions generally
have been brought in the Ninth Circuit only in the
most clear-cut cases in which the government can
specifically identify the child in the depiction or oth-
erwise identify the origin of the image. This is a
fraction of meritorious child pornography cases. The
National Center for Missing and Exploited Children
testified that, in light of the Supreme Court’s affir-
mation of the Ninth Circuit decision, prosecutors in
various parts of the country have expressed concern
about the continued viability of previously indicted
cases as well as declined potentially meritorious
prosecutions.
(10) In the absence of congressional action, this
problem will continue to grow increasingly worse.
The mere prospect that the technology exists to cre-
ate computer or computer-generated depictions that
are indistinguishable from depictions of real children
will allow defendants who possess images of real
children to escape prosecution, for it threatens to
create a reasonable doubt in every case of computer
images even when a real child was abused. This
threatens to render child pornography laws that pro-
tect real children unenforceable.
(11) To avoid this grave threat to the Govern-
ment’s unquestioned compelling interest in effective
enforcement of the child pornography laws that pro-
tect real children, a statute must be adopted that
prohibits a narrowly-defined subcategory of images.
(12) The Supreme Court’s 1982 Ferber v. New
York decision holding that child pornography was
not protected drove child pornography off the shelves
of adult bookstores. Congressional action is nec-
essary to ensure that open and notorious trafficking
in such materials does not reappear.
SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL
CHILD PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States
Code, is amended to read as follows:
‘‘(B) such visual depiction is a computer
image or computer-generated image that is, or
is indistinguishable (as defined in section
1466A) from, that of a minor engaging in sexu-
ally explicit conduct; or’’.
(b) Section 2256(2) of title 18, United States Code,
is amended to read as follows:
‘‘(2)(A) Except as provided in subparagraph
(B), ‘sexually explicit conduct’ means actual or
simulated—
‘‘(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or oppo-
site sex;
‘‘(ii) bestiality;
‘‘(iii) masturbation;
‘‘(iv) sadistic or masochistic abuse; or
‘‘(v) lascivious exhibition of the genitals or
pubic area of any person;
‘‘(B) For purposes of subsection 8(B) of this
section, ‘sexually explicit conduct’ means—
‘‘(i) actual sexual intercourse, including
genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same
or opposite sex, or lascivious simulated sexual
intercourse where the genitals, breast, or pubic
area of any person is exhibited;
‘‘(ii) actual or lascivious simulated;
‘‘(I) bestiality;
‘‘(II) masturbation; or
‘‘(III) sadistic or masochistic abuse;
or
‘‘(iii) actual or simulated lascivious exhi-
bition of the genitals or pubic area of any per-
son;’’.
(c) Section 2252A(c) of title 18, United States Code,
is amended to read as follows:
‘‘(c)(1) Except as provided in paragraph (2), it shall
be an affirmative defense to a charge of violating this sec-
tion that the alleged offense did not involve the use of a
minor or an attempt or conspiracy to commit an offense
under this section involving such use.
‘‘(2) A violation of, or an attempt or conspiracy to
violate, this section which involves child pornography as
defined in section 2256(8)(A) or (C) shall be punishable
without regard to the affirmative defense set forth in para-
graph (1).’’.
SEC. 4. PROHIBITION ON PANDERING MATERIALS AS
CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code,
is amended—
(1) in subparagraph (C), by striking ‘‘or’’ at
the end and inserting ‘‘and’’; and
(2) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is
amended—
(1) by inserting after section 2252A the fol-
lowing:
‘‘§ 2252B. Pandering and solicitation
‘‘(a) Whoever, in a circumstance described in sub-
section (d), offers, agrees, attempts, or conspires to pro-
vide or sell a visual depiction to another, and who in con-
nection therewith knowingly advertises, promotes, pre-
sents, or describes the visual depiction with the intent to
cause any person to believe that the material is, or con-
tains, a visual depiction of a minor engaging in sexually
explicit conduct shall be subject to the penalties set forth
in section 2252A(b)(1), including the penalties provided
for cases involving a prior conviction.
‘‘(b) Whoever, in a circumstance described in sub-
section (d), offers, agrees, attempts, or conspires to receive
or purchase from another a visual depiction that he be-
lieves to be, or to contain, a visual depiction of a minor
engaging in sexually explicit conduct shall be subject to
the penalties set forth in section 2252A(b)(1), including
the penalties provided for cases involving a prior convic-
tion.
‘‘(c) It is not a required element of any offense under
this section that any person actually provide, sell, receive,
purchase, possess, or produce any visual depiction.
‘‘(d) The circumstance referred to in subsection (a)
and (b) is that—
‘‘(1) any communication involved in or made in
furtherance of the offense is communicated or trans-
ported by the mail, or in interstate or foreign com-
merce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in fur-
therance of the commission of the offense;
‘‘(2) any communication involved in or made in
furtherance of the offense contemplates the trans-
mission or transportation of a visual depiction by the
mail, or in interstate or foreign commerce by any
means, including by computer;
‘‘(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of
the offense;
‘‘(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, in-
cluding by computer, or was produced using mate-
rials that have been mailed, or that have been
shipped or transported in interstate or foreign com-
merce by any means, including by computer; or
‘‘(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the
United States.’’;
(2) in the analysis for the chapter, by inserting
after the item relating to section 2252A the fol-
lowing:
‘‘2252B. Pandering and solicitation.’’.
SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG
CHILDREN.
(a) Chapter 71 of title 18, United States Code, is
amended—
(1) by inserting after section 1466 the fol-
lowing:
‘‘§ 1466A. Obscene visual depictions of young children
‘‘(a) Whoever, in a circumstance described in sub-
section (d), knowingly produces, distributes, receives, or
possesses with intent to distribute a visual depiction that
is, or is indistinguishable from, that of a pre-pubescent
child engaging in sexually explicit conduct, or attempts or
conspires to do so, shall be subject to the penalties set
forth in section 2252A(b)(1), including the penalties pro-
vided for cases involving a prior conviction.
‘‘(b) Whoever, in a circumstance described in sub-
section (d), knowingly possesses a visual depiction that is,
or is indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or attempts or con-
spires to do so, shall be subject to the penalties set forth
in section 2252A(b)(2), including the penalties provided
for cases involving a prior conviction.
‘‘(c) For purposes of this section—
‘‘(1) the term ‘visual depiction’ includes unde-
veloped film and videotape, and data stored on com-
puter disk or by electronic means which is capable
of conversion into a visual image, and also includes
any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made
or produced by electronic, mechanical, or other
means;
‘‘(2) the term ‘pre-pubescent child’ means that
(A) the child, as depicted, is one whose physical de-
velopment indicates the child is 12 years of age or
younger; or (B) the child, as depicted, does not ex-
hibit significant pubescent physical or sexual matu-
ration. Factors that may be considered in deter-
mining significant pubescent physical maturation in-
clude body habitus and musculature, height and
weight proportion, degree of hair distribution over
the body, extremity proportion with respect to the
torso, and dentition. Factors that may be considered
in determining significant pubescent sexual matura-
tion include breast development, presence of axillary
hair, pubic hair distribution, and visible growth of
the sexual organs;
‘‘(3) the term ‘sexually explicit conduct’ has the
meaning set forth in section 2256(2); and
‘‘(4) the term ‘indistinguishable’ used with re-
spect to a depiction, means virtually indistinguish-
able, in that the depiction is such that an ordinary
person viewing the depiction would conclude that the
depiction is of an actual minor engaged in sexually
explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or
paintings depicting minors or adults.
‘‘(d) The circumstance referred to in subsections (a)
and (b) is that—
‘‘(1) any communication involved in or made in
furtherance of the offense is communicated or trans-
ported by the mail, or in interstate or foreign com-
merce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in fur-
therance of the commission of the offense;
‘‘(2) any communication involved in or made in
furtherance of the offense contemplates the trans-
mission or transportation of a visual depiction by the
mail, or in interstate or foreign commerce by any
means, including by computer;
‘‘(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of
the offense;
‘‘(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, in-
cluding by computer, or was produced using mate-
rials that have been mailed, or that have been
shipped or transported in interstate or foreign com-
merce by any means, including by computer; or
‘‘(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the
United States.
‘‘(e) In a case under subsection (b), it is an affirma-
tive defense that the defendant—
‘‘(1) possessed less than three such images; and
‘‘(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof—
‘‘(A) took reasonable steps to destroy each
such image; or
‘‘(B) reported the matter to a law enforce-
ment agency and afforded that agency access to
each such image.
‘‘§ 1466B. Obscene visual representations of pre-pu-
bescent sexual abuse
‘‘(a) Whoever, in a circumstance described in sub-
section (e), knowingly produces, distributes, receives, or
possesses with intent to distribute a visual depiction of any
kind, including a drawing, cartoon, sculpture, or painting,
that—
‘‘(1) depicts a pre-pubescent child engaging in
sexually explicit conduct, and
‘‘(2) is obscene, or who attempts or conspires to
do so, shall be subject to the penalties set forth in
section 2252A(b)(1), including the penalties pro-
vided for cases involving a prior conviction.
‘‘(b) Whoever, in a circumstance described in sub-
section (e), knowingly possesses a visual depiction of any
kind, including a drawing, cartoon, sculpture, or painting,
that—
‘‘(1) depicts a pre-pubescent child engaging in
sexually explicit conduct, and
‘‘(2) is obscene,
‘‘or who attempts or conspires to do so, shall be sub-
ject to the penalties set forth in section 2252A(b)(2), in-
cluding the penalties provided for cases involving a prior
conviction.
‘‘(c) It is not a required element of any offense under
this section that the pre-pubescent child depicted actually
exist.
‘‘(d) For purposes of this section, the terms ‘visual
depiction’ and ‘pre-pubescent child’ have respectively the
meanings given those terms in seciton 1466A, and the
term ‘sexually explicit conduct’ has the meaning given that
term in section 2256(2)(B).
‘‘(e) The circumstance referred to in subsection (a)
and (b) is that—
‘‘(1) any communication involved in or made in
furtherance of the offense is communicated or trans-
ported by the mail, or in interstate or foreign com-
merce by any means, including by computer, or any
means or instrumentality of interstate or foreign
commerce is otherwise used in committing or in fur-
therance of the commission of the offense;
‘‘(2) any communication involved in or made in
furtherance of the offense contemplates the trans-
mission or transportation of a visual depiction by the
mail, or in interstate or foreign commerce by any
means, including by computer;
‘‘(3) any person travels or is transported in
interstate or foreign commerce in the course of the
commission or in furtherance of the commission of
the offense;
‘‘(4) any visual depiction involved in the offense
has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, in-
cluding by computer, or was produced using mate-
rials that have been mailed, or that have been
shipped or transported in interstate or foreign com-
merce by any means, including by computer; or
‘‘(5) the offense is committed in the special
maritime and territorial jurisdiction of the United
States or in any territory or possession of the
United States.
‘‘(f) In a case under subsection (b), it is an affirma-
tive defense that the defendant—
‘‘(1) possessed less than three such images; and
‘‘(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any image or copy
thereof—
‘‘(A) took reasonable steps to destroy each
such image; or
‘‘(B) reported the matter to a law enforce-
ment agency and afforded that agency access to
each such image.’’; and
(2) in the analysis for the chapter, by inserting
after the item relating to section 1466 the following:
‘‘1466A. Obscene visual depictions of young children.
‘‘1466B. Obscene visual representations of pre-pubescent sexual abuse.’’.
(b)(1) Except as provided in paragraph (2), the appli-
cable category of offense to be used in determining the
sentencing range referred to in section 3553(a)(4) of title
18, United States Code, with respect to any person con-
victed under section 1466A or 1466B of such title, shall
be the category of offenses described in section 2G2.2 of
the Sentencing Guidelines.
(2) The Sentencing Commission may promulgate
guidelines specifically governing offenses under section
1466A of title 18, United States Code, provided that such
guidelines shall not result in sentencing ranges that are
lower than those that would have applied under paragraph
(1).