Child Protection Act of 2012: A Brief Legal Analysis
Released: 2012-12-19T00:00:00

Introduction

The Child Protection Act of 2012 re-enforces federal laws that seek to prevent and punish the sexual exploitation of children. The new law

increases the penalty for federal child pornography offenses; outlaws the harassment of aged victims and witnesses; grants federal marshals additional powers to track sex offenders; calls for a reevaluation of the guidelines used to sentence those who intimidate children in order to obstruct prosecution of a sex offense; and bolsters the Justice Department's Internet Crimes Against Children (ICAC) program.

Legislative History

Many of the components of the Child Protection Act appeared first in earlier legislative proposals. In the House, its predecessors included the Protecting Children From Internet Pornographers Act of 2011 ( H.R. 1981 ), introduced by Representative Lamar Smith for himself and Representative Wasserman Schultz. Companion bills in the Senate included the Protecting Children From Internet Pornographers Act of 2011 ( S. 1308 ), introduced by Senator Hatch for himself and Senators Klobuchar and Rubio, and the Child Protection Act of 2012 ( S. 3456 ), introduced by Senator Blumenthal for himself and Senators Whitehouse and Cornyn.

On July 31, 2012, the House Judiciary Committee approved the Child Protection Act ( H.R. 6063 ), which passed under suspension of the rules on August 1, 2012. It passed the Senate by unanimous consent on November 26, 2012, and was signed by the President on December 7, 2012.

Penalty for Possession of Child Pornography

It is a federal crime to knowingly transport, receive, sell, or possess child pornography, or to attempt or conspire to do so, under various jurisdictional circumstances. The crimes are proscribed in two sections, whose principal difference is that one deals with pornography depicting activities of actual human beings and the other deals with pornography consisting of computer generated images as well. Federal jurisdiction of the possession offenses exists under either section, if the offense occurs on a federal enclave, in a federal facility, in Indian country, or if the pornography has been "mailed or transported in or affecting interstate or foreign commerce by any means, including computer."

The transportation, receipt, or sales offenses under either section are punishable by imprisonment for not less than 5 years or more than 20 years. The Child Protection Act increases the maximum penalty for possession, attempted possession, or conspiracy to possess, from imprisonment for not more than 10 years to imprisonment for not more than 20 years, when the pornography depicts or purports to depict a child under 12 years of age or a prepubescent child. The increase is designed as a demand reduction measure and to reiterate that Congress considers possession of child pornography a serious offense that should be punished accordingly.

Harassment of Child Victims or Witnesses

A person violates 18 U.S.C. 1512 when he

kills or attempts to kill another person; uses force or the threat of force against another person, or attempts to do so; uses intimidation or threats against another person or attempts to do so; or intentionally harasses another person and thereby hinders, delays, prevents, or dissuades another from testifying or producing evidence, or attempt to so harass;

if he does so with the intent to influence a witness, or prevent a witness from testify or producing evidence, in a federal proceeding.

Section 1514 allows the court, at the behest of the prosecution, to issue a temporary restraining order and a subsequent protective order to prevent such a violation of Section 1512 or to prevent ongoing victim or witness harassment that has no legitimate purpose. Failure to comply with either a restraining order or a protective order constitutes contempt of court. There is no statutory definition of the term "no legitimate purpose." At least one district court, however, has denied a government request under Section 1514 to order a defendant to take down a website that identified government witnesses and agents.

The Child Protection Act makes several changes in Section 1514. The House Judiciary Committee report explains the need for the modifications as follows:

Child pornography and exploitation prosecutions hinge often on the testimony of the child victim. Unfortunately, many children are abused by an acquaintance or even a family member and are often intimidated from telling their stories with threats that they will be punished or get in trouble if they tell.... Current fines and contempt citations are inadequate to protect minor witnesses and victims, especially in child sex abuse cases.... Although Federal law provides criminal penalties for physical violence, threats, and other egregious forms of witness intimidation, more subtle forms of intimidation directed to a child remain unaddressed. This section provides Federal courts with the means to control such intimidation through effective protection orders and the felony penalty would add needed teeth to the law to strengthen the deterrent effect of a restraining order to prevent repeat intimidation.

The Child Protection Act thus amends Section 1514 to make a violation or attempted violation of a restraining order or protective order punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 (not more than $500,000 for organizations). The proscription applies to orders issued in conjunction with any federal criminal case or investigation.

The Child Protection Act also makes several other adjustments to Section 1514 that apply regardless of the nature of the federal criminal context in which they arise. Thus, where it was once limited to orders for the victims and witnesses in federal "criminal cases," Section 1514 now permits protective orders in both criminal cases and criminal investigations. Where the section once required action by the prosecutor, it now permits the court to act upon its own initiative as well. It remains to be seen whether this permits a court to issue a protective order for the benefit of a defense witness.

Where the section once clearly applied to harassment of victims and witnesses, it may now clearly be invoked also to protect a member of the immediate family of a victim or witness. Where harassment once required a series of acts, it may now consist of a single act. Moreover, Section 1514 now affords child victims and witnesses greater security in the form of a protective order procedure that shields them not only from harassment (activities causing "substantial emotional distress for no legitimate purpose"), but from intimidation (activities causing "fear or apprehension" for no legitimate purpose).

These new child-specific protective orders are more readily available than their adult counterparts. The court must issue a protective order when it " finds evidence that the conduct at issue [whether it takes the form of harassment or intimidation] 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." Protective orders covering adults, in contrast, require the court to find "by a preponderance of the evidence that harassment of an identified victim or witness in a Federal criminal case or investigation exists or that such order is necessary to prevent and restrain an offense under section 1512 of this title ... "

Finally, Section 1514 now creates a rebuttable presumption that Internet publication of identifying information relating to a child victim or witness satisfies the "no legitimate purpose" element of harassment or intimidation:

[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.

"Restricted personal information" means the "the Social Security number, the home address, home phone number, mobile phone number, personal email, or home fax number of, and identifiable to," an individual. The case law suggests that the Constitution may cabin the scope of the court's authority under Section 1514 in this context.

Administrative Subpoenas for the Marshals Service

Federal agencies may often issue administrative subpoenas in the performance of the regulatory duties without prior judicial approval. In a regulatory context, the government ordinarily finds issuing an administrative subpoena more efficient than securing and executing a search warrant. On the other hand, individuals ordinarily find compliance with an administrative subpoena less intrusive than the government's search of their property under a warrant. Consequently, an administrative subpoena in a regulatory context will usually survive judicial scrutiny as long as the subpoena is statutorily authorized, statutory requirements are met, and its demands are not unreasonable.

Congress has approved the use of administrative subpoenas in criminal investigations in a few instances—Inspector General inquiries, and drug trafficking, health care fraud, and child abuse cases.

The Child Protection Act grants the Marshals Service the power to issue administrative subpoenas in order to track unregistered sex offenders. Federal law requires individuals with a prior conviction for various federal, state, or foreign sex offenses to register with state, tribal, or territorial authorities. The Marshals Service is responsible for tracking and apprehending unregistered sex offenders. It was thought that administrative subpoenas would "allow the Marshals [Service] to access hotel, rental car, or airline records quickly, before the trail goes cold on a fugitive sex offender."

Sentencing Guidelines

Federal courts must begin the sentencing process by determining the range of sentences recommended under the United States Sentencing Commission's sentencing guidelines. The sentences they impose will be upheld on review only if they are considered reasonable in light of the recommendations of the guidelines among other statutory sentencing factors. The sentencing guidelines arrive at a recommended sentencing range for a particular offense through a score keeping system that takes into account the seriousness of the offense, the circumstances under which it was committed, and the offender's criminal record. Under the system, federal crimes are each assigned to a particular guideline that sets a base offense level for the offense. Offense levels are then added or subtracted based on the circumstances of a given case. The final sentencing level total translates to a sentencing range. The Sentencing Commission not only formulated the original guidelines but it periodically reviews and revises them.

In the words of the House Judiciary Committee report the Child Protection Act "instructs the U.S. Sentencing Commission to review, and increase if appropriate, the Sentencing Guidelines contained in Part J of Chapter 2, relating to penalties for witness intimidation in certain crimes against children offenses."

Part J contains the sentencing guidelines for contempt of court, obstruction of justice, perjury, and bribery of witness, among others. The obstruction of justice guideline now covers both witness tampering and in some cases lying to a federal officer or employee with respect to a matter within his or her agency's jurisdiction. The guideline increases the applicable sentencing level when the lie relates to a sex offense. The guideline supplies no comparable sentencing level increase when the prosecution of a sex offense is obstructed by witness tampering under 18 U.S.C. 1512 rather than lying under 18 U.S.C. 1001.

The Sentencing Commission's review will be focused on the adequacy of sentencing treatment under the guidelines for obstruction of justice offenses committed in conjunction with sex trafficking, sexual abuse, sex offender registration, child pornography, and Mann Act violations, particularly when they involve children.

Internet Crimes Against Children (ICAC) Task Force Program

The Internet Crimes Against Children (ICAC) Task Force Program is a Justice Department program that assists state and local task forces devoted to investigating and prosecuting Internet sexual offenses against children—pornography, obscenity, and predatory enticement. Congress had authorized appropriations for the program of $60 million per year for each year from FY2009 through FY2013. The Child Protection Act authorizes appropriations in the same amount for each year from FY2014 through FY2018. The Child Protection Act also

raises the cap on ICAC task force training from $2 million to $4 million per year; designates the head of the program as the National Coordinator for Child Exploitation Prevention and Interdiction and provides that the position shall be in the Senior Executive Service; eliminates the volume of criminal activity as a possibly exclusive criterion for determining high-priority suspects identified in monthly ICAC data system reports; and directs the Attorney General to report to the House and Senate Judiciary Committees, within 90 days of passage, on the status of the establishment of the National Internet Crimes Against Children Data System.

18 U.S.C. 1514 (text) (amending language in italics)

(a)(1) A United States district court, upon application of the attorney for the Government, shall issue a temporary restraining order prohibiting harassment of a victim or witness in a Federal criminal case if the court finds, from specific facts shown by affidavit or by verified complaint, that there are reasonable grounds to believe that harassment of an identified victim or witness in a Federal criminal case exists or that such order is necessary to prevent and restrain an offense under section 1512 of this title, other than an offense consisting of misleading conduct, or under section 1513 of this title.

(2)(A) A temporary restraining order may be issued under this section without written or oral notice to the adverse party or such party's attorney in a civil action under this section if the court finds, upon written certification of facts by the attorney for the Government, that such notice should not be required and that there is a reasonable probability that the Government will prevail on the merits.

(B) A temporary restraining order issued without notice under this section shall be endorsed with the date and hour of issuance and be filed forthwith in the office of the clerk of the court issuing the order.

(C) A temporary restraining order issued under this section shall expire at such time, not to exceed 14 days from issuance, as the court directs; the court, for good cause shown before expiration of such order, may extend the expiration date of the order for up to 14 days or for such longer period agreed to by the adverse party.

(D) When a temporary restraining order is issued without notice, the motion for a protective order shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character, and when such motion comes on for hearing, if the attorney for the Government does not proceed with the application for a protective order, the court shall dissolve the temporary restraining order.

(E) If on two days notice to the attorney for the Government, excluding intermediate weekends and holidays, or on such shorter notice as the court may prescribe, the adverse party appears and moves to dissolve or modify the temporary restraining order, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

(F) A temporary restraining order shall set forth the reasons for the issuance of such order, be specific in terms, and describe in reasonable detail (and not by reference to the complaint or other document) the act or acts being restrained.

(b)(1) A United States district court, upon motion of the attorney for the Government , or its own motion , shall issue a protective order prohibiting harassment of a victim or witness in a Federal criminal case or investigation if the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a Federal criminal case or investigation exists or that such order is necessary to prevent and restrain an offense under section 1512 of this title, other than an offense consisting of misleading conduct, or under section 1513 of this title.

(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.

(3) At the hearing referred to in paragraph (1) of this subsection, any adverse party named in the complaint shall have the right to present evidence and cross-examine witnesses.

(4) A protective order shall set forth the reasons for the issuance of such order, be specific in terms, describe in reasonable detail the act or acts being restrained.

(5) The court shall set the duration of effect of the protective order for such period as the court determines

necessary to prevent harassment of the victim or witness but in no case for a period in excess of three years from the date of such order's issuance. The attorney for the Government may, at any time within ninety days before the expiration of such order, apply for a new protective order under this section , 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 witne s s .

(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 .