[Pages S231-S245]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. CRAIG (for himself, Mr. Hagel, Mr. Daschle, Mr. Crapo, Mr.
Baucus, Mr. Burns, Mr. Dorgan, Mr. Smith, Mr. Johnson, and Mr.
Ensign):
S. 144. A bill to require the Secretary of the Interior to establish
a program to provide assistance through States to eligible weed
management entities to control or eradicate harmful, nonnative weeds on
public and private land; to the Committee on Energy and Natural
Resources.
Mr. CRAIG. Mr. President, I would like to address an issue of
enormous economic magnitude, but one that many are only vaguely
familiar with. This issue is extremely important to those of us in the
West and around the country because it affects countless farmers,
ranchers, public land managers and private landowners, and it literally
knows no boundaries.
Noxious weeds threaten fully two-thirds of all endangered species and
are now considered by some experts to be the second most important
threat to bio-diversity. In some areas in the West, spotted knapweed
and thistle grows so dense that big game wildlife are forced to move
out of the area to find edible plants. Noxious weeds also increase soil
erosion, and prevent recreationists from accessing land that is
infested with poisonous plants.
I believe stopping the spread of noxious weeds requires a two pronged
effort. First, we must prevent new non-native weed species from
becoming established in the United States, and second, we must stop or
slow the spread of the noxious weeds currently present in our country.
I have stood before Congress for a number of years pushing
legislation and speaking on the issue of noxious weeds. I know some in
the Senate tire of hearing me bring up this issue, but growing up on a
farm and ranch in western Idaho, I have experienced the destruction
caused when noxious weeds are not treated and are left to overtake
native species. Two-thirds of our land in Idaho is owned by the Federal
Government. Our Montana, Washington, and Oregon neighbors all have
comparable Federal ownership. State and private land borders much of
these Federal lands. I have seen the devastation noxious weeds can have
when unchecked and not effectively treated or managed largely due to
lack of resources.
Because of these problems, during the 106th Congress I introduced and
worked to pass the Plant Protection Act. That bill primarily dealt with
the Animal Plant Health Inspection Service's, APHIS, authority to block
or regulate the importation or movement of a noxious weed and plant
pest, and it also provides authority for inspection and enforcement of
the regulations. Basically the bill focused on stopping the weeds at
our borders.
Last Congress, along with 16 of my colleagues, I introduced S. 198,
the ``Noxious Weed Control Act.'' We held two Committee hearings on the
bill, and it passed the Senate in November. Unfortunately there was not
time to reconcile the bill with the other body, so we are introducing
the legislation again.
To develop the Noxious Weed Control Act, I worked tirelessly with the
National Cattlemen's Beef Association, Public Lands Council, and The
Nature Conservancy. This legislation will provide a mechanism to get
funding to the local level where weeds can be fought in a
collaborative way. Working together is what this entire initiative is
all about.

Specifically, this bill establishes, in the Office of the Secretary
of the Interior, a program to provide assistance through States to
eligible weed management entities. The Secretary of the Interior would
appoint an Advisory Committee of ten individuals to make
recommendations to the Secretary regarding the annual allocation of
funds. The Secretary, in consultation with the Advisory Committee,
would allocate funds to States to provide funding to eligible weed
management entities to carry out projects approved by States to control
or eradicate harmful, non-native weeds on public and private lands.
Funds would be allocated based on several factors, including but not
limited to: the seriousness of the problem in the State; the extent to
which the Federal funds will be used to leverage non-Federal funds to
address the problem; and the extent to which the State has already made
progress in addressing the problems.
The bill directs that the States may use 8 percent of their
allocation to fund applied research to solve locally significant weed
management problems and solutions. States may also allocate 25 percent
of available funding to encourage the formation of weed management
areas and to carry out projects relating to the control and eradication
of noxious weeds, and 75 percent for financial awards to eligible weed
management entities. To be eligible for funding, a weed management
entity must be established by local stakeholders for weed management or
public education purposes, provide the State a description of its
purpose and proposed projects, and fulfill any other requirements set
by the State. Projects would be evaluated, giving equal consideration
to economic and natural values, and selected for funding based on
factors such as the seriousness of the problem, the likelihood that the
project will address the problem, and the comprehensiveness of the
project's approach to the noxious weed problem within the State. A 50
percent of non-Federal match is required to receive the funds.
The Department of Agriculture in Idaho, ISDA, has developed a
``Strategic Plan for Managing Noxious Weeds'' through a collaborative
effort involving private landowners, State and Federal land managers,
State and local governmental entities, and other interested parties.
Cooperative Weed Management Areas, CWMAs, are the centerpiece of the
strategic plan. CWMAs cross jurisdictional boundaries to bring together
all landowners, land managers, and interested parties to identify and
prioritize noxious weed strategies within the CWMA in a collaborative
manner. The primary responsibilities of the ISDA are to provide
coordination, administrative support, facilitation, and project cost-
share funding for this collaborative effort. Idaho already has a record
of working in a collaborative way on this issue, my legislation will
build on the progress we have had, and establish the same formula for
success in other States.
As I have said before, noxious weeds are a serious problem on both
public and private lands across the Nation. Like a ``slow burning
wildfire,'' noxious weeds take land out of production, force native
species off the land, and interrupt the commerce and activities of all
those who rely on the land for their livelihoods, including farmers,
ranchers, recreationists, and others.
I believe we must focus our efforts to rid our lands of this
devastating invader. Noxious weeds are not only a problem for farmers
and ranchers, but a hazard to our environment, economy, and communities
in Idaho, the West, and for the country as a whole. We must reclaim the
rangeland for natural species. Noxious weeds do not recognize property
boundaries, so if we want to win this war on weeds, we must integrate
all stakeholders at the Federal, State, local, and individual levels.
The Noxious Weed Control Act is an important step to ensure we are
diligent in stopping the spread of these weeds. I am confident that if
we work together at all levels of government and throughout our
communities, we can protect our land, livelihood, and environment.
I urge my colleagues to support this effort.

[[Page S232]]

______

By Mr. KYL (for himself, Mr. McCain, Mr. Sessions, and Mr. Bayh):
S. 145. A bill to prohibit assistance to North Korea or the Korean
Peninsula Development Organization, and for other purposes; to the
Committee on Foreign Relations.
Mr. KYL. Mr. President, I ask unanimous consent that the text of the
North Korea Democracy Act of 2003 be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 145

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 ``North Korea Democracy Act of
2003''.

SEC. 2. FINDINGS.

Congress makes the following findings:
(1) Under the Agreed Framework of October 21, 1994, North
Korea committed to--
(A) freeze and eventually dismantle its graphite-moderated
reactors and related facilities;
(B) implement the North-South Joint Declaration on the
Denuclearization of the Korean Peninsula, which prohibits the
production, testing, or possession of nuclear weapons; and
(C) allow implementation of its IAEA safeguards agreement
under the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT) for nuclear facilities designated under the Agreed
Framework and any other North Korean nuclear facilities.
(2) The General Accounting Office has reported that North
Korea has diverted heavy oil received from the United States-
led Korean Peninsula Energy Development Organization for
unauthorized purposes in violation of the Agreed Framework.
(3) On April 1, 2002, President George W. Bush stated that
he would not certify North Korea's compliance with all
provisions of the Agreed Framework.
(4) North Korea has violated the basic terms of the Agreed
Framework and the North-South Joint Declaration on the
Denuclearlization of the Korean Peninsula by pursuing the
enrichment of uranium for the purpose of building a nuclear
weapon and by ``nuclearizing'' the Korean peninsula.
(5) North Korea has admitted to having a covert nuclear
weapons program and declared the Agreed Framework nullified.
(6) North Korea has announced its intention to restart the
5-megawatt reactor and related reprocessing facility at
Yongbyon, which were frozen under the Agreed Framework, and
has expelled the IAEA personnel monitoring the freeze.
(7) North Korea has announced its intention to withdraw
from the Treaty on the Non-Proliferation of Nuclear Weapons,
done at Washington, London, and Moscow on July 1, 1968 (21
UST 483).

SEC. 3. DEFINITIONS.

In this Act:
(1) Agreed framework.--The term ``Agreed Framework'' means
the Agreed Framework Between the United States of America and
the Democratic People's Republic of Korea, signed in Geneva
on October 21, 1994, and the Confidential Minute to that
agreement.
(2) IAEA.--The term ``IAEA'' means the International Atomic
Energy Agency.
(3) KEDO.--The term ``KEDO'' means the Korean Peninsula
Energy Development Organization.
(4) North korea.--The term ``North Korea'' means the
Democratic People's Republic of Korea.
(5) NPT.--The term ``NPT'' means the Treaty on the Non-
Proliferation of Nuclear Weapons done at Washington, London,
and Moscow, July 1, 1968 (22 UST 483).

SEC. 4. SENSE OF CONGRESS REGARDING THE AGREED FRAMEWORK AND
THE NORTH KOREAN NUCLEAR WEAPONS PROGRAM.

It is the sense of Congress that--
(1) the Agreed Framework is, as a result of North Korea's
own illicit and deceitful actions over several years and
recent declaration, null and void;
(2) North Korea's pursuit and development of nuclear
weapons--
(A) is of grave concern and represents a serious threat to
the security of the United States, its regional allies, and
friends;
(B) is a clear and present danger to United States forces
and personnel in the region and the United States homeland;
and
(C) seriously undermines the security and stability of
Northeast Asia; and
(3) North Korea must immediately come into compliance with
its obligations under the Treaty on the Non-Proliferation of
Nuclear Weapons and other commitments to the international
community by--
(A) renouncing its nuclear weapons and materials production
ambitions;
(B) dismantling its nuclear infrastructure and facilities;
(C) transferring all sensitive nuclear materials,
technologies, and equipment (including nuclear devices in any
stage of development) to the IAEA forthwith; and
(D) allowing immediate, full, and unfettered access by IAEA
inspectors to ensure that subparagraphs (A), (B), and (C)
have been fully and verifiably achieved; and
(4) any diplomatic solution to the North Korean crisis--
(A) should take into account that North Korea is not a
trustworthy negotiating partner;
(B) must achieve the total dismantlement of North Korea's
nuclear weapons and nuclear production capability; and
(C) must include highly intrusive verification
requirements, including on-site monitoring and free access
for the investigation of all sites of concern, that are no
less stringent than those imposed on Iraq pursuant to United
Nations Security Council Resolution 1441 (2002) and previous
corresponding resolutions.

SEC. 5. PROHIBITION ON UNITED STATES ASSISTANCE UNDER THE
AGREED FRAMEWORK.

No department, agency, or entity of the United States
Government may provide assistance to North Korea or the
Korean Peninsula Energy Development Organization under the
Agreed Framework.

SEC. 6. LIMITATIONS ON NUCLEAR COOPERATION.

(a) Restriction on Entry Into Force of Nuclear Cooperation
Agreement and Implementation of the Agreement.--Section
822(a) of the Admiral James W. Nance and Meg Donovan Foreign
Relations Authorization Act, Fiscal Years 2000 and 2001 (as
enacted by section 1000(b)(7) of Public Law 106-113; 113
Stat. 1501A-472) is amended to read as follows:
``(a) In General.--
``(1) Restrictions.--Notwithstanding any other provision of
law or any international agreement, unless or until the
conditions described in paragraph (2) are satisfied--
``(A) no agreement for cooperation (as defined in section
11 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2014 b.))
between the United States and North Korea may become
effective;
``(B) no license may be issued for export directly or
indirectly to North Korea of any nuclear material,
facilities, components, or other goods, services, or
technology that would be subject to such agreement;
``(C) no approval may be given for the transfer or
retransfer directly or indirectly to North Korea of any
nuclear material, facilities, components, or other goods,
services, or technology that would be subject to such
agreement;
``(D) no license may be issued under the Export
Administration Act of 1979 for the export to North Korea of
any item or related technical data which, as determined under
section 309(c) of the Nuclear Non-Proliferation Act of 1978,
could be of significance for nuclear explosive purposes or
the production of nuclear materials;
``(E) no license may be issued under section 109 b. of the
Atomic Energy Act of 1954 for the export to North Korea of
any component, substance, or item that is subject to a
license requirement under such section;
``(F) no approval may be granted, under the Export
Administration Act of 1979 or section 109 b.(3) of the Atomic
Energy Act of 1954, for the retransfer to North Korea of any
item, technical data, component, or substance described in
subparagraph (D) or (E); and
``(G) no authorization may be granted under section 57
b.(2) of the Atomic Energy Act of 1954 for any person to
engage, directly or indirectly, in the production of special
nuclear material (as defined in section 11 aa. of the Atomic
Energy Act of 1954) in North Korea.
``(2) Conditions.--The conditions referred to in paragraph
(1) are that--
``(A) the President determines and reports to the Committee
on International Relations of the House of Representatives
and the Committee on Foreign Relations of the Senate that--
``(i) North Korea has come into full compliance with its
safeguards agreement with the IAEA (INFCIRC/403), and has
taken all steps that have been deemed necessary by the IAEA
in this regard;
``(ii) North Korea has permitted the IAEA full access to--

``(I) all additional sites and all information (including
historical records) deemed necessary by the IAEA to verify
the accuracy and completeness of North Korea's initial report
of May 4, 1992, to the IAEA on all nuclear sites and material
in North Korea; and
``(II) all nuclear sites deemed to be of concern to the
IAEA subsequent to that report;

``(iii) North Korea has consistently and verifiably taken
steps to implement the Joint Declaration on Denuclearization,
and is in full compliance with its obligations under numbered
paragraphs 1, 2, and 3 of the Joint Declaration on
Denuclearization;
``(iv) North Korea does not have uranium enrichment or
nuclear reprocessing facilities, and is making no progress
toward acquiring or developing such facilities;
``(v) North Korea does not have nuclear materials or
nuclear weapons and is making no effort to acquire, develop,
test, produce, or deploy such weapons; and
``(vi) the transfer, approval, licensing, or authorization
of any of such materials, components, facilities, goods,
services, technologies, data, substances or production to,
for or in North Korea is in the national interest of the
United States; and
``(B) there is enacted into law a joint resolution stating
in substance the approval of Congress of such action.''.
(b) Conforming Amendment.--Section 822(b) of such Act is
amended by striking ``subsection (a)'' and inserting
``subsection (a)(1)''.

[[Page S233]]

SEC. 7. APPLICATION OF UNITED STATES SANCTIONS.

(a) Authority To Impose Additional United States Sanctions
Against North Korea.--The President is authorized to exercise
any of his authorities under the Foreign Assistance Act of
1961, the Arms Export Control Act, the International
Emergency Economic Powers Act, or any other provision of law
to impose full economic sanctions against North Korea, or to
take any other appropriate action against North Korea,
including the interdiction of shipments of weapons, weapons-
related components, materials, or technologies, or dual-use
items traveling to or from North Korea, in response to the
activities of North Korea to develop nuclear weapons in
violation of North Korea's international obligations.
(b) Prohibition on Availability of Funds for Easing of
Sanctions Against North Korea.--None of the funds
appropriated under any provision of law may be made available
to carry out any sanctions regime against North Korea that is
less restrictive than the sanctions regime in effect against
North Korea immediately prior to the September 17, 1999,
announcement by the President of an easing of sanctions
against North Korea.

SEC. 8. PURSUIT OF MULTILATERAL MEASURES.

The President should take all necessary and appropriate
actions to obtain--
(1) international condemnation of North Korea for its
pursuit of nuclear weapons and serious breach of the Treaty
on the Non-Proliferation of Nuclear Weapons and other
international obligations, and
(2) multilateral diplomatic and economic sanctions against
North Korea that are at least as restrictive as United
Nations Security Council Resolution 661 concerning Iraq.

SEC. 9. TREATMENT OF REFUGEES FROM NORTH KOREA.

(a) Sense of Congress.--It is the sense of Congress that
the United States should begin immediately to work with other
countries in the region to adopt a policy with respect to
refugees from North Korea that would--
(1) guarantee all such refugees safe arrival in a country
of first asylum in which the refugees would stay on a
temporary basis; and
(2) promote burden-sharing of refugee costs between
countries by providing for the resettlement of the refugees
from the country of first asylum to a third country.
(b) Eligibility for Refugee Status.--
(1) In general.--In the case of an alien who is a national
of North Korea, the alien may establish, for purposes of
admission as a refugee under section 207 of the Immigration
and Nationality Act, that the alien has a well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion
by asserting such a fear and asserting a credible basis for
concern about the possibility of such persecution.
(2) Not treated as national of south korea.--For purposes
of eligibility for refugee status under section 207 of the
Immigration and Nationality Act (8 U.S.C. 1157), or for
asylum under section 208 of such Act (8 U.S.C. 1158), a
national of North Korea shall not be considered a national of
the Republic of Korea.
(c) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.

SEC. 10. INCREASED BROADCASTING BY RADIO FREE ASIA.

(a) In General.--In making grants to Radio Free Asia, the
Broadcasting Board of Governors shall ensure that Radio Free
Asia increases its broadcasting with respect to North Korea
to 24 hours each day.
(b) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this section.

SEC. 11. SENSE OF CONGRESS.

It is the sense of Congress that the United States, in
conjunction with the Republic of Korea and other allies in
the Pacific region, should take measures, including military
reinforcements, enhanced defense exercises and other steps as
appropriate, to ensure--
(1) the highest possible level of deterrence against the
multiple threats that North Korea poses; and
(2) the highest level of readiness of United States and
allied forces should military action become necessary.

SEC. 12. PRESIDENTIAL REPORT.

Not later than 180 days after the date of enactment of this
Act, the President shall submit a report to Congress
regarding his actions to implement the provisions of this
Act.
______

By Mr. DeWINE (for himself, Mr. Graham of South Carolina, Mr.
Voinovich, Mr. Ensign, Mr. Brownback, Mr. Enzi, Mr. Inhofe, Mr.
Nickles, Mr. Santorum, and Mr. Fitzgerald):
S. 146. A bill to amend titles 10 and 18, United States Code, to
protect unborn victims of violence; to the Committee on the Judiciary.
Mr. DeWINE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 146

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 ``Unborn Victims of Violence
Act of 2003''.

SEC. 2. PROTECTION OF UNBORN CHILDREN.

(a) In General.--Title 18, United States Code, is amended
by inserting after chapter 90 the following:

``CHAPTER 90A--PROTECTION OF UNBORN CHILDREN

``Sec.
``1841. Causing death of or bodily injury to unborn child.

``Sec. 1841. Causing death of or bodily injury to unborn
child

``(a)(1) Any person who engages in conduct that violates
any of the provisions of law listed in subsection (b) and
thereby causes the death of, or bodily injury (as defined in
section 1365) to, a child, who is in utero at the time the
conduct takes place, is guilty of a separate offense under
this section.
``(2)(A) Except as otherwise provided in this paragraph,
the punishment for that separate offense is the same as the
punishment provided for that conduct under Federal law had
that injury or death occurred to the unborn child's mother.
``(B) An offense under this section does not require proof
that--
``(i) the person engaging in the conduct had knowledge or
should have had knowledge that the victim of the underlying
offense was pregnant; or
``(ii) the defendant intended to cause the death of, or
bodily injury to, the unborn child.
``(C) If the person engaging in the conduct thereby
intentionally kills or attempts to kill the unborn child,
that person shall be punished as provided under section 1111,
1112, or 1113, as applicable, for intentionally killing or
attempting to kill a human being, instead of the penalties
that would otherwise apply under subparagraph (A).
``(D) Notwithstanding any other provision of law, the death
penalty shall not be imposed for an offense under this
section.
``(b) The provisions referred to in subsection (a) are the
following:
``(1) Sections 36, 37, 43, 111, 112, 113, 114, 115, 229,
242, 245, 247, 248, 351, 831, 844(d), 844(f), 844(h)(1),
844(i), 924(j), 930, 1111, 1112, 1113, 1114, 1116, 1118,
1119, 1120, 1121, 1153(a), 1201(a), 1203, 1365(a), 1501,
1503, 1505, 1512, 1513, 1751, 1864, 1951, 1952(a)(1)(B),
1952(a)(2)(B), 1952(a)(3)(B), 1958, 1959, 1992, 2113, 2114,
2116, 2118, 2119, 2191, 2231, 2241(a), 2245, 2261, 2261A,
2280, 2281, 2332, 2332a, 2332b, 2340A, and 2441 of this
title.
``(2) Section 408(e) of the Controlled Substances Act of
1970 (21 U.S.C. 848(e)).
``(3) Section 202 of the Atomic Energy Act of 1954 (42
U.S.C. 2283).
``(c) Subsection (a) does not permit prosecution--
``(1) for conduct relating to an abortion for which the
consent of the pregnant woman has been obtained or for which
such consent is implied by law in a medical emergency;
``(2) for conduct relating to any medical treatment of the
pregnant woman or her unborn child; or
``(3) of any woman with respect to her unborn child.
``(d) In this section--
``(1) the terms `child in utero' and `child, who is in
utero' mean a member of the species homo sapiens, at any
stage of development, who is carried in the womb; and
``(2) the term `unborn child' means a child in utero.''.
(b) Clerical Amendment.--The table of chapters for part I
of title 18, United States Code, is amended by inserting
after the item relating to chapter 90 the following:

``90A. Causing death of or bodily injury to unborn child....1841''.....

SEC. 3. MILITARY JUSTICE SYSTEM.

(a) Protection of Unborn Children.--Subchapter X of chapter
47 of title 10, United States Code (the Uniform Code of
Military Justice), is amended by inserting after section 919
(article 119) the following:

``Sec. 919a. Art. 119a. Causing death of or bodily injury to
unborn child

``(a)(1) Any person subject to this chapter who engages in
conduct that violates any of the provisions of law listed in
subsection (b) and thereby causes the death of, or bodily
injury (as defined in section 1365 of title 18) to, a child,
who is in utero at the time the conduct takes place, is
guilty of a separate offense under this section.
``(2)(A) Except as otherwise provided in this paragraph,
the punishment for that separate offense is the same as the
punishment for that conduct under this chapter had that
injury or death occurred to the unborn child's mother.
``(B) An offense under this section does not require proof
that--
``(i) the person engaging in the conduct had knowledge or
should have had knowledge that the victim of the underlying
offense was pregnant; or
``(ii) the defendant intended to cause the death of, or
bodily injury to, the unborn child.
``(C) If the person engaging in the conduct thereby
intentionally kills or attempts to kill the unborn child,
that person shall be punished as provided under section 918,
919, or 880 of this title (article 118, 119, or 80), as
applicable, for intentionally killing or attempting to kill a
human being, instead of

[[Page S234]]

the penalties that would otherwise apply under subparagraph
(A).
``(D) Notwithstanding any other provision of law, the death
penalty shall not be imposed for an offense under this
section.
``(b) The provisions referred to in subsection (a) are
sections 918, 919(a), 919(b)(2), 920(a), 922, 924, 926, and
928 of this title (articles 111, 118, 119(a), 119(b)(2),
120(a), 122, 124, 126, and 128).
``(c) Subsection (a) does not permit prosecution--
``(1) for conduct relating to an abortion for which the
consent of the pregnant woman has been obtained or for which
such consent is implied by law in a medical emergency;
``(2) for conduct relating to any medical treatment of the
pregnant woman or her unborn child; or
``(3) of any woman with respect to her unborn child.
``(d) In this section--
``(1) the terms `child in utero' and `child, who is in
utero' mean a member of the species homo sapiens, at any
stage of development, who is carried in the womb; and
``(2) the term `unborn child' means a child in utero.''.
(b) Clerical Amendment.--The table of sections at the
beginning of subchapter X of chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), is
amended by inserting after the item relating to section 919
the following:

``919a. 119a. Causing death of or bodily injury to unborn child.''.
______

By Mr. DeWINE:
S. 147. A bill to amend title 18 of the United States Code to add a
general provision for criminal attempt; to the Committee on the
Judiciary.
Mr. DeWINE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 147

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 ``General Attempt Provision
Act''.

SEC. 2. ESTABLISHMENT OF GENERAL ATTEMPT OFFENSE.

(a) Chapter 19 of title 18, United States Code, is
amended--
(1) in the chapter heading, by striking ``Conspiracy'' and
inserting ``Inchoate offenses''; and
(2) by adding at the end the following:

``Sec. 374. Attempt to commit offense

``(a) In General.--Whoever, acting with the state of mind
otherwise required for the commission of an offense described
in this title, intentionally engages in conduct that, in
fact, constitutes a substantial step toward the commission of
the offense, is guilty of an attempt and is subject to the
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt, except
that the penalty of death shall not be imposed.
``(b) Inability To Commit Offense; Completion of Offense.--
It is not a defense to a prosecution under this section--
``(1) that it was factually impossible for the actor to
commit the offense, if the offense could have been committed
had the circumstances been as the actor believed them to be;
or
``(2) that the offense attempted was completed.
``(c) Exceptions.--This section does not apply--
``(1) to an offense consisting of conspiracy, attempt,
endeavor, or solicitation;
``(2) to an offense consisting of an omission, refusal,
failure of refraining to act;
``(3) to an offense involving negligent conduct; or
``(4) to an offense described in section 1118, 1120, 1121,
or 1153.
``(d) Affirmative Defense.--
``(1) In general.--It is an affirmative defense to a
prosecution under this section, on which the defendant bears
the burden of persuasion by a preponderance of the evidence,
that, under circumstances manifesting a voluntary and
complete renunciation of criminal intent, the defendant
prevented the commission of the offense.
``(2) Definition.--For purposes of this subsection, a
renunciation is not `voluntary and complete' if it is
motivated in whole or in part by circumstances that increase
the probability of detection or apprehension or that make it
more difficult to accomplish the offense, or by a decision to
postpone the offense until a more advantageous time or to
transfer the criminal effort to a similar objective or
victim.''.
(b) Technical and Conforming Amendment.--The analysis for
chapter 19 of title 18, United States Code, is amended by
adding at the end the following:

``374. Attempt to commit offense.''.

SEC. 3. RATIONALIZATION OF CONSPIRACY PENALTY AND CREATION OF
RENUNCIATION DEFENSE.

Section 371 of title 18, United States Code, is amended--
(1) in the first undesignated paragraph--
(A) by striking ``If two or more'' and inserting the
following:
``(a) In General.--If 2 or more''; and
(B) by striking ``either to commit any offense against the
United States, or'';
(2) by striking the second undesignated paragraph; and
(3) by adding at the end the following:
``(b) Conspiracy.--If 2 or more persons conspire to commit
any offense against the United States, and 1 or more of such
persons do any act to effect the object of the conspiracy,
each shall be subject to the same penalties as those
prescribed for the most serious offense, the commission of
which was the object of the conspiracy, except that the
penalty of death shall not be imposed.''.
______

By Mr. DeWINE:
S. 148. A bill to provide for the Secretary of Homeland Security to
be included in the line of Presidential succession; to the Committee on
Rules and Administration.
Mr. DeWINE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 148

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

SECTION 1. SECRETARY OF HOMELAND SECURITY IN PRESIDENTIAL
LINE OF SUCCESSION.

Section 19(d)(1) of title 3, United States Code, is amended
by inserting ``Secretary of Homeland Security,'' after
``Attorney General,''.
______

By Mr. DeWINE (for himself and Mr. Crapo):
S. 149. A bill to improve investigation and prosecution of sexual
assault cases with DNA evidence, and for other purposes; to the
Committee on the Judiciary.
Mr. DeWINE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 149

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 ``Rape Kits and DNA Evidence
Backlog Elimination Act of 2003''.

SEC. 2. REAUTHORIZATION OF DNA ANALYSIS BACKLOG ELIMINATION
ACT OF 2000.

Section 2(j) of the DNA Analysis Backlog Elimination Act of
2000 (42 U.S.C. 14135(j)) is amended--
(1) in paragraph (1)--
(A) in subparagraph (B), by striking ``and'';
(B) in subparagraph (C), by striking the period at the end
and inserting ``; and''; and
(C) by adding at the end the following:
``(D) $25,000,000 for fiscal year 2004;
``(E) $25,000,000 for fiscal year 2005;
``(F) $25,000,000 for fiscal year 2006; and
``(G) $25,000,000 for fiscal year 2007.''; and
(2) in paragraph (2)--
(A) in subparagraph (C), by striking ``and''; and
(B) by striking subparagraph (D), and inserting the
following:
``(D) $75,000,000 for fiscal year 2004;
``(E) $75,000,000 for fiscal year 2005;
``(F) $25,000,000 for fiscal year 2006; and
``(G) $25,000,000 for fiscal year 2007.''.

SEC. 3. EXPANSION OF COMBINED DNA INDEX SYSTEM.

(a) Inclusion of all DNA Samples From States.--Section
210304 of the DNA Identification Act of 1994 (42 U.S.C.
14132) is amended--
(1) in subsection (a)(1), by striking ``of persons
convicted of crimes;'' and inserting the following: ``of--
``(A) persons convicted of crimes; and
``(B) other persons, as authorized under the laws of the
jurisdiction that generates the records;''; and
(2) by striking subsection (d).
(b) Felons Convicted of Federal Crimes.--
Section 3(d) of the DNA Analysis Backlog Elimination Act of
2000 (42 U.S.C. 14135a(d)) is amended to read as follows:
``(d) Qualifying Federal Offenses.--The offenses that shall
be treated for purposes of this section as qualifying Federal
offenses are the following offenses, as determined by the
Attorney General:
``(1) Any felony.
``(2) Any offense under chapter 109A of title 18, United
States Code.
``(3) Any crime of violence (as that term is defined in
section 16 of title 18, United States Code).
``(4) Any attempt or conspiracy to commit any of the
offenses under paragraphs (1) through (3).''.
(c) Uniform Code of Military Justice.--Section 1565 of
title 10, United States Code, is amended--
(1) by amending subsection (d) to read as follows:
``(d) Qualifying Military Offenses.--The offenses that
shall be treated for purposes of this section as qualifying
military offenses are the following offenses, as determined
by the Secretary of Defense, in consultation with the
Attorney General:
``(1) Any offense under the Uniform Code of Military
Justice for which the authorized

[[Page S235]]

penalties include confinement for more than 1 year.
``(2) Any other offense under the Uniform Code of Military
Justice that is comparable to a qualifying Federal offense
(as determined under section 3(d) of the DNA Analysis Backlog
Elimination Act of 2000).'';
(2) by striking subsection (e); and
(3) by redesignating subsection (f) as subsection (e).
(d) Technical Amendments.--Section 811(a)(2) of the
Antiterrorism and Effective Death Penalty Act of 1996 (28
U.S.C. 531 note) is amended--
(1) in subparagraph (A), by striking ``[42 U.S.C.A.
14132a(d)]'' and inserting ``(42 U.S.C. 14135a(d))''; and
(2) in subparagraph (B), by striking ``[42 U.S.C.A.
Sec. 14132b(d)]'' and inserting ``(42 U.S.C. 14135b(d))''.

SEC. 4. FORENSIC LABORATORY GRANTS.

(a) Grants Authorized.--The Attorney General is authorized
to award grants to not more than 15 State or local forensic
laboratories to implement innovative plans to encourage law
enforcement, judicial, and corrections personnel to increase
the submission of rape evidence kits and other biological
evidence from crime scenes.
(b) Application.--Not later than December 31, 2004, each
laboratory desiring a grant under this section shall submit
an application containing a proposed plan to encourage law
enforcement officials in localities with a DNA backlog to
increase the submission of rape evidence kits and other
biological evidence from crime scenes.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $30,000,000 for each of the fiscal years
2004 through 2006 to carry out the provisions of this
section.

SEC. 5. ELIGIBILITY OF LOCAL GOVERNMENTS OR INDIAN TRIBES TO
APPLY FOR AND RECEIVE DNA BACKLOG ELIMINATION
GRANTS.

Section 2 of the DNA Analysis Backlog Elimination Act of
2000 (42 U.S.C. 14135) is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``, units of local government, or Indian
tribes'' after ``eligible States''; and
(ii) by inserting ``, unit of local government, or Indian
tribe'' after ``State''; and
(B) in paragraph (3), by striking ``or by units of local
government'' and inserting ``, units of local government, or
Indian tribes``;
(2) in subsection (b)--
(A) in the matter preceding paragraph (1), by inserting ``,
unit of local government, or Indian tribe'' after ``State''
each place that term appears;
(B) in paragraph (1), by inserting ``, unit of local
government, or Indian tribe`` after ``State'';
(C) in paragraph (3), by inserting ``, unit of local
government, or Indian tribe'' after ``State'' the first time
that term appears;
(D) in paragraph (4), by inserting ``, unit of local
government, or Indian tribe'' after ``State''; and
(E) in paragraph (5), by inserting ``, unit of local
government, or Indian tribe'' after ``State'';
(3) in subsection (c), by inserting ``, unit of local
government, or Indian tribe'' after ``State'';
(4) in subsection (d)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``or a unit of local
government'' and inserting ``, a unit of local government, or
an Indian tribe''; and
(ii) in subparagraph (B), by striking ``or a unit of local
government'' and inserting ``, a unit of local government, or
an Indian tribe''; and
(B) in paragraph (2)(A), by inserting ``, units of local
government, and Indian tribes,'' after ``States'';
(5) in subsection (e)--
(A) in paragraph (1), by inserting ``or local government''
after ``State'' each place that term appears; and
(B) in paragraph (2), by inserting ``, unit of local
government, or Indian tribe'' after ``State'';
(6) in subsection (f), in the matter preceding paragraph
(1), by inserting ``, unit of local government, or Indian
tribe'' after ``State'';
(7) in subsection (g)--
(A) in paragraph (1), by inserting ``, unit of local
government, or Indian tribe'' after ``State''; and
(B) in paragraph (2), by inserting ``, units of local
government, or Indian tribes'' after ``States''; and
(8) in subsection (h), by inserting ``, unit of local
government, or Indian tribe'' after ``State'' each place that
term appears.

SEC. 6. SAFE PROGRAM.

(a) Establishment of Grant Program.--The Attorney General
shall establish a program to award and disburse annual grants
to SAFE programs.
(b) Compliance With National Protocol.--To receive a grant
under this section, a proposed or existing SAFE program shall
be in compliance with the standards and recommended national
protocol developed by the Attorney General pursuant to
section 1405 of the Victims of Trafficking and Violence
Protection Act of 2000 (42 U.S.C. 3796gg note).
(c) Application.--
(1) In general.--Each proposed or existing SAFE program
that desires a grant under this section shall submit an
application to the Attorney General at such time, and in such
manner, as the Attorney General shall reasonably require.
(2) Contents.--Each application submitted pursuant to
paragraph (1) shall include information regarding--
(A) the size of the population or estimated population to
be served by the proposed or existing SAFE program; and
(B) if the SAFE program exists at the time the applicant
submits its application, the effectiveness of that SAFE
program.
(d) Priority Given to Programs in Underserved Areas.--In
awarding grants under this section, the Attorney General
shall give priority to proposed or existing SAFE programs
that are serving, or will serve, populations currently
underserved by existing SAFE programs.
(e) Nonexclusivity.--Nothing in this Act shall be construed
to limit or restrict the ability of proposed or existing SAFE
programs to apply for and obtain Federal funding from any
other agency or department, or under any other Federal grant
program.
(f) Audits.--The Attorney General shall audit recipients of
grants awarded and disbursed under this section to ensure--
(1) compliance with the standards and recommended national
protocol developed by the Attorney General pursuant to
section 1405 of the Victims of Trafficking and Violence
Protection Act of 2000 (42 U.S.C. 3796gg note);
(2) compliance with other applicable Federal laws; and
(3) overall program effectiveness.
(g) Authorization of Appropriations.--There are authorized
to be appropriated to the Department of Justice $10,000,000
for each of fiscal years 2004 through 2008 for grants under
this section.

SEC. 7. DNA EVIDENCE TRAINING GRANTS.

(a) Grants Authorized.--The Attorney General is authorized
to award grants to prosecutor's offices, associations, or
organizations to train local prosecutors in the use of DNA
evidence in a criminal investigation or a trial.
(b) Application.--Each eligible entity desiring a grant
under this section shall submit an application to the
Attorney General at such time, in such manner, and
accompanied by such information as the Attorney General may
reasonably require.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $5,000,000 for each of the fiscal years
2004 through 2006 to carry out the provisions of this
section.

SEC. 8. NO STATUTE OF LIMITATIONS FOR CHILD ABDUCTION AND SEX
CRIMES.

(a) Statute of Limitations.--
(1) In general.--Chapter 213 of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 3297. Child abduction and sex offenses

``Notwithstanding any other provision of law, an indictment
may be found or an information instituted at any time without
limitation for any offense under section 1201 involving a
minor victim, and for any felony under chapter 109A, 110, or
117, or section 1591.''.
(2) Amendment to chapter analysis.--The table of sections
at the beginning of such chapter is amended by adding at the
end the following new item:

``3297. Child abduction and sex offenses.''.

(b) Application.--The amendments made by this section shall
apply to the prosecution of any offense committed before, on,
or after the date of the enactment of this section.

SEC. 9. TOLLING OF LIMITATION PERIOD FOR PROSECUTION IN CASES
INVOLVING DNA IDENTIFICATION.

(a) In General.--Chapter 213 of title 18, United States
Code, as amended by section 8, is further amended by adding
at the end the following:

``Sec. 3298. Cases involving DNA evidence

``In a case in which DNA testing implicates a person in the
commission of a felony, no statute of limitations that would
otherwise preclude prosecution of the offense shall preclude
such prosecution until a period of time following the DNA
testing that implicates the person has elapsed that is equal
to the otherwise applicable limitation period.''.
(b) Clerical Amendment.--The table of sections for chapter
213 of title 18, United States Code, is amended by adding at
the end the following:

``3298. Cases involving DNA evidence.''.

(c) Effective Date.--The amendments made by this section
shall apply to the prosecution of any offense committed
before, on, or after the date of the enactment of this
section.

SEC. 10. LEGAL ASSISTANCE FOR VICTIMS OF VIOLENCE.

Section 1201 of the Violence Against Women Act of 2000 (42
U.S.C. 3796gg-6) is amended--
(1) in subsection (a), by inserting ``dating violence,''
after ``domestic violence,'';
(2) in subsection (b)--
(A) by inserting before paragraph (1) the following:
``(1) Dating violence.--The term `dating violence' means
violence committed by a person--
``(A) who is or has been in a social relationship of a
romantic or intimate nature with the victim; and
``(B) where the existence of such a relationship shall be
determined based on a consideration of--
``(i) the length of the relationship;
``(ii) the type of relationship; and

[[Page S236]]

``(iii) the frequency of interaction between the persons
involved in the relationship.'';
(B) by redesignating paragraphs (1), (2), and (3) as
paragraphs (2), (3), and (4) respectively; and
(C) in paragraph (3), as redesignated by subparagraph (B)
of this paragraph, by inserting ``dating violence,'' after
``domestic violence,'';
(3) in subsection (c)--
(A) in paragraph (1), by inserting--
(i) ``, dating violence,'' after ``between domestic
violence''; and
(ii) ``dating violence,'' after ``victims of domestic
violence,'';
(B) in paragraph (2), by inserting ``dating violence,''
after ``domestic violence,''; and
(C) in paragraph (3), by inserting ``dating violence,''
after ``domestic violence,'';
(4) in subsection (d)--
(A) in paragraph (1), by inserting ``, dating violence,''
after ``domestic violence'';
(B) in paragraph (2), by inserting ``, dating violence,''
after ``domestic violence'';
(C) in paragraph (3), by inserting ``, dating violence,''
after ``domestic violence''; and
(D) in paragraph (4), by inserting ``dating violence,''
after ``domestic violence,'';
(5) in subsection (e), by inserting ``dating violence,''
after ``domestic violence,''; and
(6) in subsection (f)(2)(A), by inserting ``dating
violence,'' after ``domestic violence,''.

SEC. 11. SENSE OF CONGRESS.

It is the sense of Congress that the Paul Coverdell
National Forensic Science Improvement Act (Public Law 106-
561) should be funded in order to improve the quality,
timeliness, and credibility of forensic science services for
criminal justice purposes.
______

By Mr. ALLEN:
S. 150. A bill to make permanent the moratorium on taxes on Internet
access and multiple and discriminatory taxes on electronic commerce
imposed by the Internet Tax Freedom Act; to the Committee on Commerce,
Science, and Transportation.
Mr. ALLEN. Mr. President, today I rise to introduce the Internet Tax
Nondiscrimination Act of 2003, to permanently extend the moratorium on
Internet access taxes, as well as prevent multiple and discriminatory
taxes on the Internet. There are two postulates in life that guide me
today: first, always stand strong for freedom and opportunity for all
people; and second, always keep your word and keep your promises.
As many in this chamber know, I have made permanently extending the
moratorium on new taxes that discriminate against the Internet one of
my top priorities since coming to the Senate. Looking back two years
ago, as a rookie, I was pleased to work in the successful effort, with
Senator McCain and others, to extend the moratorium on new Internet
taxes for two years. Of course, I would have preferred to have a
permanent moratorium and introduced S. 777 to do so back in 2001.
I cannot ever envision a time when it will be desirable policy for
any government to tax access to the Internet. I cannot ever conceive of
any instance or event that will precipitate justification for multiple
or discriminatory taxes on the Internet by any government, large or
small, national, State or local.
This has been a position I have held from 1997 during my days as
Governor or Virginia when I was one of only four Governors with this
position. I have promised the first bill I'd introduce in the 108th
Congress would be a permanent ban on discriminatory taxes and Internet
access taxes. I am one who stands on the side of freedom of the
Internet, trusting free people and entrepreneurs, not on the side of
making this advancement in technology easier to tax for the tax
collectors. My legislation will permanently ban taxes on Internet
access, as well as taxes on Internet transactions by multiple
jurisdictions, and discriminatory taxes that unfairly target Internet
transactions.
The current moratorium on Internet tax is set to expire in November
of this year. I want the members of this body to understand that the
moratorium on Internet tax is completely unrelated to issues
surrounding sales tax simplification. I was here for the previous
debate when legislation extending this moratorium was bogged down and
held hostage on the extremely complicated and cumbersome issue of sales
tax collection.
Since that time, I know State tax administrators have been working to
simplify their sales tax system. However, I encourage my colleagues in
the Senate that when considering the issue of sales tax simplification
and business activity tax nexus that they do so separately from
legislation that deals with the Internet tax moratorium.
I understand most of the States are looking for more tax revenue, but
the Internet Tax Nondiscrimination Act will not, and does not, prohibit
States from collecting sales and use tax on electronic commerce.
Rather, this legislation will permanently ban taxes placed on consumers
to access the Internet, like the Spanish American War Tax on telephone
service, and prohibits multiple and discriminatory taxes on Internet
purchases, which are taxes that would apply more than once on the same
product or taxes that are higher because of the method by which a
product is purchased.
The moratorium on Internet access taxes prohibits governments from
placing taxes on top of the monthly rates Americans already pay to
connect to the Internet. I am concerned that if this Congress were to
allow new, discriminatory taxes on Internet access it would be allowing
States and localities to contribute to the economic ``digital divide.''
For every dollar added to the cost of Internet access, we can expect to
see lost utilization of the Internet by thousands of lower income
American families nationwide.
Now, more than ever, with our Nation's economy emerging from a
recession and the Congress working with the President on an economic
stimulus package, the people of this country need security with regard
to their financial future. Any additional tax burdens on the Internet,
will mean additional costs that many Americans cannot afford, forcing
the poorest in our society to reduce or even forgo their use of the
Internet as a tool for education, exploration and individual
opportunity.
The more expensive the government makes Internet access, the less
likely people will be to buy advanced services, such as high-speed
broadband connections, Internet protocol software, wireless WiFi
devices and many other multimedia applications. In a time when
technology and the Internet have grown into every aspect of our daily
lives and where access to the Internet has become a necessity for
Americans, will imposing taxes to access the Internet or levying taxes
that discriminate against the Internet as a form of commerce ever be
fair? The answer is that there will never be a time to tax access to
the Internet nor impose discriminatory taxes on Internet commerce.
The goal of the Internet Tax Nondiscrimination Act is simple and
clear: the Internet should remain as accessible as possible to all
people in all parts of our country, forever.
I call on my colleagues to join me and cosponsor the Internet Tax
Nondiscrimination Act of 2003, permanently extending the Internet
moratorium on access, multiple and discriminatory taxes.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 150

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 ``Internet Tax Non-
discrimination Act of 2003''.

SEC. 2. AMENDMENT OF INTERNET TAX FREEDOM ACT.

Section 1101(a) of the Internet Tax Freedom Act (47 U.S.C.
151 nt.) is amended--
(1) by striking ``taxes during the period beginning on
October 1, 1998, and ending on November 1, 2003--'' and
inserting ``taxes:'';
(2) by striking paragraph (1) and inserting the following:
``(1) Taxes on Internet access.''; and
(3) by striking ``multiple'' in paragraph (2) and inserting
``Multiple''.

SEC. 3. REPEAL OF EXCEPTION.

Section 1104 of the Internet Tax Freedom Act (47 U.S.C. 151
nt.) is amended by striking paragraph (10).
______

By Mr. HATCH (for himself, Mr. Leahy, and Mr. Bennett):
S. 151. A bill to amend title 18, United States Code, with respect to
the sexual exploitation of children; to the Committee on the Judiciary.
Mr. HATCH. Mr. President, I rise today to introduce a critically
important piece of legislation, the PROTECT Act of 2003. As its name
makes clear, this bill will help to protect our children from the
horrors of child pornography. Disgusting as child pornography is, the
growth of technology and the rise of the internet have flooded our
Nation with it. This is one area where we cannot afford to simply look
the other way. Child pornography is routinely used by perverts and
pedophiles

[[Page S237]]

not only to whet their sick desires, but also to lure our defenseless
children into unspeakable acts of sexual exploitation. In sum, child
pornography is a root from which more evils grow. It creates a
measurable harm to children in our society. On this record, we must
act.
I am proud to have Senator Leahy as the leading co-sponsor of the
PROTECT Act. We jointly introduced an earlier version of this bill last
year in the wake of the Supreme Court's decision in Ashcroft v. Free
Speech Coalition. That decision greatly weakened the laws pertaining to
child pornography and left some gaping holes in our Nation's ability to
effectively prosecute child pornography offenses. We must now act
quickly to repair our child pornography laws to provide for effective
law enforcement in a manner that accords with the Court's ruling.
The PROTECT Act strikes a necessary balance between the First
Amendment and our Nation's critically important interest in protecting
children. This Act does many things to aid the prosecution of child
PROTECT Act, and I highlight some of its most significant provisions
here.
First, the Act plugs the loophole that exists today where child
pornographers can escape prosecution by claiming that their sexually
explicit material did not actually involve real children. Technology
has advanced so far that even experts often cannot say with absolute
certainty that an image is real or a ``virtual'' computer creation. For
this reason, the Act permits a prosecution to proceed when the child
pornography includes persons who appear virtually indistinguishable
from actual minors. And even when this occurs, the accused is afforded
a complete affirmative defense by showing that the child pornography
did not involve a minor.
Second, the Act prohibits the pandering or solicitation of anything
represented to be obscene child pornography. The Supreme Court has
ruled that this type of conduct does not constitute protected speech.
Congress, moreover, should severely punish those who would try to
profit or satisfy their depraved desires by dealing in such filth.
Third, the Act prohibits any depictions of minors, or apparent
minors, in actual, not simulated, acts of bestiality, sadistic or
masochistic abuse, or sexual intercourse, when such depictions lack
literary, artistic, political or scientific value. This type of
hardcore sexually explicit material merits our highest form of disdain
and disgust and is something that our society ought to try hard to
eradicate. Nor does the First Amendment bar us from banning the
depictions of children actually engaging in the most explicit and
disturbing forms of sexual activity.
Fourth, the Act beefs up existing record keeping requirements for
those who chose to produce sexually explicit materials. These record
keeping requirements are unobjectionable since they do not ban
anything. Rather, the Act simply requires such producers to keep
records confirming that no actual minors were involved in the making of
the sexually explicit materials. In light of the difficulty experts
face in determining an actor's true age and identity just by viewing
the material itself, increasing the criminal penalties for failing to
maintain these records are vital to ensuring that only adults appear in
such productions.
Finally, the Act creates a new civil action for those aggrieved by
the depraved acts of those who violate our child pornography laws. This
is one area of the law where society as a whole can benefit from more
vigorous enforcement, both on the criminal and civil fronts.
I was disappointed that the PROTECT Act did not pass into law last
year, although it unanimously cleared the Senate in the final days of
the 107th Congress. As incoming Chairman of the Judiciary Committee,
passing this important bill will be one of my very top priorities. I
remain open to hearing suggestions from all interested parties on how
to improve the bill or make it even tougher against child
pornographers. I strongly urge my colleagues to work with me and join
with me in promptly passing this important legislation.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 151

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 ``Prosecutorial Remedies and
Tools Against the Exploitation of Children Today Act of
2003'' or ``PROTECT Act''.

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) (obscenity), or New York v.
Ferber, 458 U.S. 747 (1982) (child pornography) and thus may
be prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. ``The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing
importance,'' New York v. Ferber, 458 U.S. 747, 757 (1982)
(emphasis added), and this interest extends to stamping out
the vice of child pornography at all levels in the
distribution chain. Osborne v. Ohio, 495 U.S. 103, 110
(1990).
(3) The Government thus has a compelling interest 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 indistinguishable from depictions of real
children; (B) create depictions of virtual children using
compositions of real children to create an unidentifiable
child; or (C) disguise pictures of real children being abused
by making the image look computer generated.
(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children,
demonstrates that technology already exists to disguise
depictions of real children to make them unidentifiable and
to make depictions of real children appear computer
generated. The technology 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 computer 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 Internet 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-generation 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 format, this task can be even
harder since proper forensic 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 evident. The Ninth
Circuit has seen a significant adverse 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 otherwise 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 affirmation 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 create 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 protect real
children unenforceable.
(11) To avoid this grave threat to the Government's
unquestioned compelling interest

[[Page S238]]

in effective enforcement of the child pornography laws that
protect 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 necessary to ensure that open and
notorious trafficking in such materials does not reappear.

SEC. 3. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING
OR CONTAINING CHILD PORNOGRAPHY.

Section 2252A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking paragraph (3) and inserting the following:
``(3) knowingly--
``(A) reproduces any child pornography for distribution
through the mails, or in interstate or foreign commerce by
any means, including by computer; or
``(B) advertises, promotes, presents, distributes, or
solicits through the mails, or in interstate or foreign
commerce by any means, including by computer, any material or
purported material in a manner that conveys the impression
that the material or purported material is, or contains, an
obscene visual depiction of a minor engaging in sexually
explicit conduct;'';
(B) in paragraph (4), by striking ``or'' at the end;
(C) in paragraph (5), by striking the period at the end and
inserting ``; or''; and
(D) by adding at the end the following:
``(6) knowingly distributes, offers, sends, or provides to
a minor any visual depiction, including any photograph, film,
video, picture, or computer generated image or picture,
whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct where such visual
depiction is, or appears to be, of a minor engaging in
sexually explicit conduct--
``(A) that has been mailed, shipped, or transported in
interstate or foreign commerce by any means, including by
computer;
``(B) that was produced using materials that have been
mailed, shipped, or transported in interstate or foreign
commerce by any means, including by computer; or
``(C) which distribution, offer, sending, or provision is
accomplished using the mails or by transmitting or causing to
be transmitted any wire communication in interstate or
foreign commerce, including by computer,
for purposes of inducing or persuading a minor to participate
in any activity that is illegal.'';
(2) in subsection (b)(1), by striking ``(1), (2), (3), or
(4)'' and inserting ``(1), (2), (3), (4), or (6)''; and
(3) by striking subsection (c) and inserting the following:
``(c) It shall be an affirmative defense to a charge of
violating paragraph (1), (2), (3), (4), or (5) of subsection
(a) that--
``(1)(A) the alleged child pornography was produced using
an actual person or persons engaging in sexually explicit
conduct; and
``(B) each such person was an adult at the time the
material was produced; or
``(2) the alleged child pornography was not produced using
any actual minor or minors.
No affirmative defense shall be available in any prosecution
that involves obscene child pornography or child pornography
as described in section 2256(8)(D). A defendant may not
assert an affirmative defense to a charge of violating
paragraph (1), (2), (3), (4), or (5) of subsection (a)
unless, within the time provided for filing pretrial motions
or at such time prior to trial as the judge may direct, but
in no event later than 10 days before the commencement of the
trial, the defendant provides the court and the United States
with notice of the intent to assert such defense and the
substance of any expert or other specialized testimony or
evidence upon which the defendant intends to rely. If the
defendant fails to comply with this subsection, the court
shall, absent a finding of extraordinary circumstances that
prevented timely compliance, prohibit the defendant from
asserting such defense to a charge of violating paragraph
(1), (2), (3), (4), or (5) of subsection (a) or presenting
any evidence for which the defendant has failed to provide
proper and timely notice.''.

SEC. 4. ADMISSIBILITY OF EVIDENCE.

Section 2252A of title 18, United States Code, is amended
by adding at the end the following:
``(e) Admissibility of Evidence.--On motion of the
government, in any prosecution under this chapter, except for
good cause shown, the name, address, social security number,
or other nonphysical identifying information, other than the
age or approximate age, of any minor who is depicted in any
child pornography shall not be admissible and may be redacted
from any otherwise admissible evidence, and the jury shall be
instructed, upon request of the United States, that it can
draw no inference from the absence of such evidence in
deciding whether the child pornography depicts an actual
minor .''.

SEC. 5. DEFINITIONS.

Section 2256 of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting before the semicolon the
following: ``and shall not be construed to require proof of
the actual identity of the person'';
(2) in paragraph (8)--
(A) in subparagraph (B), by inserting ``is obscene and''
before ``is'';
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by striking subparagraph (D) and inserting the
following:
``(D) such visual depiction--
``(i) is, or appears to be, of a minor actually engaging in
bestiality, sadistic or masochistic abuse, or sexual
intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex; and
``(ii) lacks serious literary, artistic, political, or
scientific value; or
``(E) the production of such visual depiction involves the
use of an identifiable minor engaging in sexually explicit
conduct;''; and
(3) by striking paragraph (9), and inserting the following:
``(9) `identifiable minor'--
``(A)(i) means a person--
``(I)(aa) who was a minor at the time the visual depiction
was created, adapted, or modified; or
``(bb) whose image as a minor was used in creating,
adapting, or modifying the visual depiction; and
``(II) who is recognizable as an actual person by the
person's face, likeness, or other distinguishing
characteristic, such as a unique birthmark or other
recognizable feature; and
``(ii) shall not be construed to require proof of the
actual identity of the identifiable minor; or
``(B) means a computer or computer generated image that is
virtually indistinguishable from an actual minor; and
``(10) `virtually indistinguishable' means that the
depiction is such that an ordinary person viewing the
depiction would conclude that the depiction is of an actual
minor.''.

SEC. 6. RECORDKEEPING REQUIREMENTS.

Section 2257 of title 18, United States Code, is amended--
(1) in subsection (d)(2), by striking ``of this section''
and inserting ``of this chapter or chapter 71,'';
(2) in subsection (h)(3), by inserting ``, computer
generated image or picture,'' after ``video tape''; and
(3) in subsection (i)--
(A) by striking ``not more than 2 years'' and inserting
``not more than 5 years''; and
(B) by striking ``5 years'' and inserting ``10 years''.

SEC. 7. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND
RELATED INFORMATION.

Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(2) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses a violation of State
criminal law, to an appropriate official of a State or
subdivision of a State for the purpose of enforcing such
State law.'';
(3) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(4) by inserting after paragraph (2) of subsection (b) the
following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward
any such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.

SEC. 8. CONTENTS DISCLOSURE OF STORED COMMUNICATIONS.

Section 2702 of title 18, United States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (5), by striking ``or'' at the end;
(B) in paragraph (6)--
(i) in subparagraph (A)(ii), by inserting ``or'' at the
end;
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as subparagraph
(B);
(C) by redesignating paragraph (6) as paragraph (7); and
(D) by inserting after paragraph (5) the following:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''; and
(2) in subsection (c)--
(A) in paragraph (4), by striking ``or'' at the end;
(B) by redesignating paragraph (5) as paragraph (6); and
(C) by inserting after paragraph (4) the following:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted under section
227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032); or''.

SEC. 9. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.

Section 2251 of title 18, United States Code, is amended--
(1) by striking ``subsection (d)'' each place that term
appears and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(3) by inserting after subsection (b) the following:
``(c)(1) Any person who, in a circumstance described in
paragraph (2), employs, uses, persuades, induces, entices, or
coerces any minor to engage in, or who has a minor assist any
other person to engage in, any sexually explicit conduct
outside of the United States, its territories or possessions,
for the

[[Page S239]]

purpose of producing any visual depiction of such conduct,
shall be punished as provided under subsection (e).
``(2) The circumstance referred to in paragraph (1) is
that--
``(A) the person intends such visual depiction to be
transported to the United States, its territories or
possessions, by any means, including by computer or mail; or
``(B) the person transports such visual depiction to the
United States, its territories or possessions, by any means,
including by computer or mail.''.

SEC. 10. CIVIL REMEDIES.

Section 2252A of title 18, United States Code, as amended
by this Act, is amended by adding at the end the following:
``(f) Civil Remedies.--
``(1) In general.--Any person aggrieved by reason of the
conduct prohibited under subsection (a) or (b) may commence a
civil action for the relief set forth in paragraph (2).
``(2) Relief.--In any action commenced in accordance with
paragraph (1), the court may award appropriate relief,
including--
``(A) temporary, preliminary, or permanent injunctive
relief;
``(B) compensatory and punitive damages; and
``(C) the costs of the civil action and reasonable fees for
attorneys and expert witnesses.''.

SEC. 11. ENHANCED PENALTIES FOR RECIDIVISTS.

Sections 2251(d), 2252(b), and 2252A(b) of title 18, United
States Code, are amended by inserting ``chapter 71,'' before
``chapter 109A,'' each place it appears.

SEC. 12. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO
ENGAGE IN SEXUAL ACT WITH A JUVENILE.

Pursuant to its authority under section 994(p) of title 18,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall review and, as
appropriate, amend the Federal Sentencing Guidelines and
policy statements to ensure that guideline penalties are
adequate in cases that involve interstate travel with the
intent to engage in a sexual act with a juvenile in violation
of section 2423 of title 18, United States Code, to deter and
punish such conduct.

SEC. 13. MISCELLANEOUS PROVISIONS.

(a) Appointment of Trial Attorneys.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Attorney General shall appoint 25
additional trial attorneys to the Child Exploitation and
Obscenity Section of the Criminal Division of the Department
of Justice or to appropriate U.S. Attorney's Offices, and
those trial attorneys shall have as their primary focus, the
investigation and prosecution of Federal child pornography
laws.
(2) Authorization of appropriations.--There are authorized
to be appropriated to the Department of Justice such sums as
may be necessary to carry out this subsection.
(b) Report to Congressional Committees.--
(1) In general.--Not later than 9 months after the date of
enactment of this Act, and every 2 years thereafter, the
Attorney General shall report to the Chairpersons and Ranking
Members of the Committees on the Judiciary of the Senate and
the House of Representatives on the Federal enforcement
actions under chapter 110 of title 18, United States Code.
(2) Contents.--The report required under paragraph (1)
shall include--
(A) an evaluation of the prosecutions brought under chapter
110 of title 18, United States Code;
(B) an outcome-based measurement of performance; and
(C) an analysis of the technology being used by the child
pornography industry.
(c) Sentencing Guidelines.--Pursuant to its authority under
section 994(p) of title 18, United States Code, and in
accordance with this section, the United States Sentencing
Commission shall review and, as appropriate, amend the
Federal Sentencing Guidelines and policy statements to ensure
that the guidelines are adequate to deter and punish conduct
that involves a violation of paragraph (3)(B) or (6) of
section 2252A(a) of title 18, United States Code, as created
by this Act. With respect to the guidelines for section
2252A(a)(3)(B), the Commission shall consider the relative
culpability of promoting, presenting, describing, or
distributing material in violation of that section as
compared with solicitation of such material.

SEC. 14. SEVERABILITY.

If any provision of this Act, an amendment made by this
Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, the amendments made by this Act, and
the application of the provisions of such to any person or
circumstance shall not be affected thereby.
Mr. LEAHY. Mr. President, I rise today to join my good friend, the
senior Senator from Utah, in introducing the PROTECT Act, a bill
providing important new tools to fight child pornography. This bill is
identical to the measure that Senator Hatch and I worked so hard on in
the last Congress. The bill passed the Senate by unanimous consent in
the 107th Congress and I am proud to be the lead cosponsor of this
legislation for the 108th Congress as well, but unfortunately, it did
not become law last year because, even though the Senate was still
meeting, considering and passing legislation, the House of
Representatives had adjourned. The House would not return to take
action on this measure that had passed the Senate unanimously or to
work out our differences.
I hope that the full Senate will quickly pass this bill again, and I
strongly urge the Republican leadership in the House of Representatives
to take this second opportunity to pass this important legislation. I
also urge the Administration to support this bipartisan measure,
instead of using this debate as an opportunity to push for legislation
that strives to make an ideological statement, but which may not
withstand Constitutional scrutiny.
I want to take a moment to speak about the history of this important
bill and the effort that it took to get to this point. In May of 2002,
I came to the Senate floor and joined Senator Hatch in introducing S.
2520, the PROTECT Act, after the Supreme Court's decision in Ashcroft
v. Free Speech Coalition, (``Free Speech''). Although there were some
others who raised constitutional concerns about specific provisions in
that bill, I believed that unlike legislative language proposed by the
Administration in the last Congress, it was a good faith effort to work
within the First Amendment.
Everyone in the Senate agrees that we should do all we can to protect
our children from being victimized by child pornography. That would be
an easy debate and vote. The more difficult thing is to write a law
that will both do that and will stick. In 1996, when we passed the
Child Pornography Prevention Act, (``CPPA''), many warned us that
certain provisions of that Act violated the First Amendment. The
Supreme Court's recent decision in Free Speech has proven them correct.
We should not sit by and do nothing. It is important that we respond
to the Supreme Court decision. It is just as important, however, that
we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time
we should respond with a law that passes constitutional muster. Our
children deserve more than a press conference on this issue. They
deserve a law that will last.
It is important that we do all we can to end the victimization of
real children by child pornographers, but it is also important that we
pass a law that will withstand First Amendment scrutiny. We need a law
with real teeth, not one with false teeth.
After joining Senator Hatch in introducing the PROTECT Act in the
107th Congress, as Chairman of the Judiciary Committee I convened a
hearing on October 2, 2002 on the legislation. We heard from the
Administration, from the National Center for Missing and Exploited
Children, (``NCMEC''), and from experts who came and told us that our
bill, as introduced, would pass constitutional muster, but the House-
passed bill supported by the Administration would not.
I then placed S. 2520 on the Judiciary Committee's calendar for the
October 8, 2002, business meeting. I continued to work with Senator
Hatch to improve the bill so that it could be quickly enacted. Senator
Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute
that improved the bill before our October 8 business meeting.
Unfortunately the Judiciary Committee was unable to consider it because
of procedural maneuvering by my colleagues that had nothing to do with
this important legislation, including the refusal of Committee members
on the other side of the aisle to consider any pending legislation on
the Committee's agenda.
I still wanted to get this bill done. That is why, for a full week in
October, I worked to clear and have the full Senate pass a substitute
to S. 2520 that tracked the Hatch-Leahy proposed committee substitute
in nearly every area. Indeed, the substitute I offered even adopted
parts of the House bill which would help the NCMEC work with local and
state law enforcement on these cases. Twice, I spoke on the Senate
floor imploring that we approve such legislation. As I stated then,
every single Democratic Senator cleared that measure. I then urged
Republicans to work on their side of the aisle to clear this measure--
so similar to the joint Hatch-Leahy substitute--so that we could
swiftly enact a law that would pass constitutional muster.
Unfortunately, they did not. Facing

[[Page S240]]

the recess before the mid-term elections, we were stymied again.
Even after the last election, however, during our lame duck session,
I continued to work with Senator Hatch to pass this legislation through
the Senate. As I had stated I would do prior to the election, I called
a meeting of the Judiciary Committee on November 14, 2002. In the last
meeting of the Judiciary Committee under my Chairmanship in the 107th
Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda
yet again. At that meeting the Judiciary Committee amended and approved
this legislation. We agreed on a substitute and to improvements in the
victim shield provision that I authored.
Although I did not agree with two of Senator Hatch's amendments,
because I thought that they risked having the bill declared
unconstitutional, I nevertheless called both for the Committee to
approve the bill and voted for the bill in its amended form. I will
discuss these provisions later.
I then sought, that same day, to gain the unanimous consent of the
full Senate to pass S. 2520 as reported by the Judiciary Committee, and
I worked with Senator Hatch to clear the bill on both sides of the
aisle. I am pleased that the Senate did pass S. 2520 by unanimous
consent. I want to thank Senator Hatch for all he did to help clear the
bill for passage in the 107th Congress.
Unfortunately, the House failed to act on this measure last year and
the Administration decided not to push for passage. If they had, we
could have passed a bill, sent it to the President, and already had a
new law on the books.
Instead, I am here again with Senator Hatch asking yet again that
this bill be enacted. I am glad to have been able to work hand in hand
with Senator Hatch on the PROTECT Act because it is a bill that gives
prosecutors and investigators the tools they need to combat child
pornography. The Hatch-Leahy PROTECT Act strives to be a serious
response to a serious problem.
The provisions of the Hatch-Leahy bill, as we introduce it, are
bipartisan and good faith efforts to protect both our children and to
honor the Constitution. At our hearing last October, Constitutional and
criminal law scholars--one of whom was the same person who warned us
last time that the CPPA would be struck down--stated that the PROTECT
Act as introduced in the last Congress could withstand Constitutional
scrutiny, although there were parts that were very close to the line.
Let me outline some of the bill's important provisions:
I would like to emphasize some key provisions of the PROTECT Act.
Section 3 of the bill creates two new crimes aimed at people who
distribute child pornography and those who use such material to entice
children to do illegal acts. Each of these new crimes carry a 15 year
maximum prison sentence for a first offense and double that term for
repeat offenders. First, the bill criminalizes the pandering of child
pornography, creating a new crime to respond to the Supreme Court's
recent ruling striking down the CPPA's definition of pandering. This
provision is narrower than the old ``pandering'' definition for two
reasons, both of which respond to specific Court criticisms: First, the
new crime only applies to the people who actually pander the child
pornography or solicit it, not to all those who possess the material
``downstream.''
The bill also contains a directive to the Sentencing Commission which
asks them to distinguish between those who pander or distribute such
material who are more culpable than those who solicit the material.
Second, the pandering in this provision must be linked to ``obscene''
material, which is totally unprotected speech under Miller. Thus, while
I would have liked for the provision to be crafted more narrowly so
that ``purported'' material was not included, and I acknowledge that
this provision may well be challenged on some of the same grounds as
the prior CPPA provision, it responds to some specific concerns raised
by the Supreme Court and is significantly narrower than the CPPA's
definition of pandering.
Second, the bill creates a new crime to take direct aim at one of the
chief evils of child pornography: namely, its use by sexual predators
to entice minors either to engage in sexual activity or the production
of more child pornography. This was one of the compelling arguments
made by the government before the Supreme Court in support of the CPPA,
but the Court rejected that argument as an insufficient basis to ban
the production, distribution or possession of ``virtual'' child
pornography. This bill addresses that same harm in a more targeted
manner. It creates a new felony, which applies to both actual and
virtual child pornography, for people who use such material to entice
minors to participate in illegal activity. This will provide
prosecutors a potent new tool to put away those who prey upon children
using such pornography--whether the child pornography is virtual or
not.
Next, this bill attempts to revamp the existing affirmative defense
in child pornography cases both in response to criticisms of the
Supreme Court and so that the defense does not erect unfair hurdles to
the prosecution of cases involving real children. Responding directly
to criticisms of the Court, the new affirmative defense applies equally
to those who are charged with possessing child pornography and to those
who actually produce it, a change from current law. It also allows,
again responding to specific Supreme Court criticisms, for a defense
that no actual children were used in the production of the child
pornography--i.e. that it was made using computers. At the same time,
this provision protects prosecutors from unfair surprise in the use of
this affirmative defense by requiring that a defendant give advance
notice of his intent to assert it, just as defendants are currently
required to give if they plan to assert an alibi or insanity defense.
As a former prosecutor I suggested this provision because it effects
the real way that these important trials are conducted. With the
provision, the government can marshal the expert testimony that may be
needed to rebut this ``virtual porn'' defense in cases where real
children were victimized.
This improved affirmative defense provides important support for the
constitutionality of much of this bill after the Free Speech decision.
Even Justice Thomas specifically wrote that it would be a key factor
for him. This is one reason for making the defense applicable to all
non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In
the bill's current form, however, the affirmative defense is not
available in one of the new proposed classes of virtual child
pornography, which would be found at 18 U.S.C. Sec. 2256(8)(D). This
omission may render that provision unconstitutional under the First
Amendment, and I hope that, as the legislative process continues, we
can work with constitutional experts to improve the bill in this and
other ways. I do not want to be here again in five years, after yet
another Supreme Court decision striking this law down.
The bill also provides needed assistance to prosecutors in rebutting
the virtual porn defense by removing a restriction on the use of
records of performers portrayed in certain sexually explicit conduct
that are required to be maintained under 18 U.S.C. Sec. 2257, and
expanding such records to cover computer images. These records, which
will be helpful in proving that the material in question is not
``virtual'' child pornography, may be used in federal child pornography
and obscenity prosecutions under this Act. The purpose of this
provision is to protect real children from exploitation. It is
important that prosecutors have access to this information in both
child pornography and obscenity prosecutions, since the Supreme Court's
recent decision has had the effect of narrowing the child pornography
laws, making more likely that the general obscenity statutes will be
important tools in protecting children from exploitation. In addition,
the Act raises the penalties for not keeping accurate records, further
deterring the exploitation of minors and enhancing the reliability of
the records.
Next, this bill contains several provisions altering the definition
of ``child pornography'' in response to the Free Speech case. One
approach would have been simply to add an ``obscenity'' requirement to
the child pornography definitions. Outlawing all obscene child
pornography real and virtual; minor and `youthful-adult;' simulated and

[[Page S241]]

real--would clearly pass a constitutional challenge because obscene
speech enjoys no protection at all. Under the Miller obscenity test,
such material (1) ``appeals to the prurient interest,'' (2) is utterly
``offensive'' in any ``community,'' and (3) has absolutely no
``literary, artistic or scientific value.''

Some new provisions of this bill do take this ``obscenity'' approach,
like the new Sec. 2256(8)(B). Other provisions, however, take a
different approach. Specifically, the CPPA's definition of
``identifiable minor'' has been modified in the bill to include a prong
for persons who are ``virtually indistinguishable from an actual
minor.'' This adopts language from Justice O'Connor's concurrence in
the Free Speech case. Thus, while this language is defensible, I
predict that this provision will be the center of much constitutional
debate. Although I will explain in more detail later, these new
definitional provisions risk crossing the constitutional line.
It does not do America's children any good to write a law that might
get struck down by our courts in order to prove an ideological point.
These provisions should be fully debated and examined during the
legislative process, and I will speak about them in more detail later.
The bill also contains a variety of other measures designed to
increase jail sentences in cases where children are victimized by
sexual predators. First, it enhances penalties for repeat offenders of
child sex offenses by expanding the predicate crimes which trigger
tough, mandatory minimum sentences. Second, the bill requires the U.S.
Sentencing Commission to address a disturbing disparity in the current
Sentencing Guidelines. The current sentences for a person who actually
travels across state lines to have sex with a child are not as high as
for child pornography. The Commission needs to correct this oversight
immediately, so that prosecutors can take these dangerous sexual
predators off the street. These are all strong measures designed to
protect children and increase prison sentences for child molesters and
those who otherwise exploit children.
The Act also has several provisions designed to protect the children
who are victims in these horrible cases. Privacy of the children must
be paramount. It is important that they not be victimized yet again in
the criminal process. This bill provides for the first time ever an
explicit shield law that prohibits the name or other non physical
identifying information of the child victim, other than the age or
approximate age, from being admitted at any child pornography trial. It
is also intended that judges will take appropriate steps to ensure that
such information as the child's name, address or other identifying
information not be publicly disclosed during the pretrial phase of the
case or at sentencing. The bill also contains a provision requiring the
judge to instruct the jury, upon request of the government, that no
inference should be drawn against the United States because of
information inadmissible under the new shield law.
The Hatch-Leahy PROTECT Act also amends certain reporting provisions
governing child pornography. Specifically, it allows federal
authorities to report information they receive from the Center from
Missing and Exploited Children, CMEC, to state and local police without
a court order. In addition, the bill removes the restrictions under the
Electronic Communications Privacy Act, ECPA, for reporting the contents
of, and information pertaining to, a subscriber of stored electronic
communications to the CMEC when a mandatory child porn report is filed
with the CMEC pursuant to 42 U.S.C. Sec. 13032. This change may invite
federal, state or local authorities to circumvent all subpoena and
court order requirements under ECPA and allow them to obtain subscriber
emails and information by triggering the initial report to the CMEC
themselves. To the extent that these changes in ECPA may have that
unintended effect, as this bill is considered in the Judiciary
Committee and on the floor, we should consider mechanisms to guard
against subverting the safeguards in ECPA from government officials
going on fishing expeditions for stored electronic communications under
the rubric of child porn investigations.
I also must express my disappointment in a recent Government
Accounting Office, GAO, report that criticizes the Department of
Justice information sharing regulations related to the CMEC tip line.
Evidently, due to outdated turf mentalities, the Attorney General's
regulations exclude both the United States Secret Service and the U.S.
Postal Inspection Service from direct access to important tip line
information. That is totally unacceptable, especially in the post 9-11
world where the importance of information sharing is greater than ever.
How can the Administration justify support of this bill, which allows
state and local law enforcement officers such access, when they are
simultaneously refusing to allow other federal law enforcement agencies
access to the same information? I urge the Attorney General to end this
unseemly turf battle and to issue regulations allowing both the Secret
Service and the Postal Inspection Service, who both perform valuable
work in investigating these cases, to have access to this important
information so that they can better protect our nation's children.
This bill also provides for extraterritorial jurisdiction where a
defendant induces a child to engage in sexually explicit conduct
outside the United States for the purposes of producing child
pornography which they intend to transport to the United States. The
provision is crafted to require the intent of actual transport of the
material into the United States, unlike the House bill from the last
Congress, which criminalized even an intent to make such material
``accessible.'' Under that overly broad wording, any material posted on
a web site internationally could be covered, whether or not it was ever
intended that the material be downloaded in the United States.
Finally, the bill provides also a new private right of action for the
victims of child pornography. This provision has teeth, including
injunctive relief and punitive damages that will help to put those who
produce child pornography out of business for good. I commend Senator
Hatch for his leadership on this provision.
These provisions are important, practical tools to put child
pornographers out of business for good and in jail where they belong.
As to the administration proposal, unfortunately legal experts could
not also vouch for the constitutionality of the bill supported by the
Administration in the last Congress, which seemed to challenge the
Supreme Court's decision, rather than accommodate the restraints
spelled out by the Supreme Court. That proposal and the associated
House bill from the 107th Congress simply ignored the Supreme Court's
decision, reflecting an ideological response rather than a carefully
drawn bill that would stand up to scrutiny. Last year, I received
letters from other Constitutional scholars and practitioners expressing
the same conclusion, which I will place in the record with unanimous
consent.
With regard to the potential constitutional issues and suggested
improvements, as I mentioned previously, the PROTECT Act is a good
faith effort to tackle this problem, but it is not perfect and I would
like to see some additional changes to the bill. I hope that we can
consider these as the process moves forward.
First, regarding the tip line, I would like to clarify that law
enforcement agents cannot ``tickle the tip line'' to avoid the key
protections of the Electronic Communications Privacy Act. This may
include clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering
the report may not be generated by the government's investigative
agents themselves. A tip line to the CMEC is just that--a way for
outsiders to report wrongdoing to the CMEC and the government, not for
the government to generate a report to itself without following
otherwise required lawful process.
Second, regarding the affirmative defense, I would like to ensure
that there is an affirmative defense for the new category of child
pornography and for all cases where a defendant can prove in court that
a specific, non-obscene image was made using not any child but only
actual, identifiable adults.
As a general matter, it is worth repeating that we could be avoiding
all these problems were we to take the simple approach of outlawing
``obscene'' child pornography of all types,

[[Page S242]]

which we do in one new provision that I suggested. That approach would
produce a law beyond any possible challenge. This approach is also
supported by the National Center for Missing and Exploited Children,
which we all respect as the true expert in this field.
Following is an excerpt from the Center's answer to written questions
submitted after our hearing, which I will place in the Record in its
entirety:

Our view is that the vast majority (99-100%) of all child
pornography would be found to be obscene by most judges and
juries, even under a standard of beyond a reasonable doubt in
criminal cases. Even within the reasonable person under
community standards model, it is highly unlikely that any
community would not find child pornography obscene. . . .
In the post Free Speech decision legal climate, the
prosecution of child pornography under an obscenity approach
is a reasonable strategy and sound policy.

Thus, according to the National Center for Missing and Exploited
Children, the approach that is least likely to raise constitutional
questions--using established obscenity law--is also an effective one.
Because that is not the approach we have decided to use, I recognize
that the PROTECT Act contains provisions about which some may have
legitimate Constitutional questions.
Specifically, in addition to the provisions that I have already
discussed, there were two amendments adopted in the Judiciary Committee
in the last Congress to which I objected that are included in the bill
as we introduce it today. I felt and still feel that these provisions
needlessly risked a serious constitutional challenge to a bill that
provided prosecutors the tools they needed to do their jobs. Let me
discuss my opposition to these two amendments offered by my good friend
Senator Hatch last Congress.
As to the expansion of the pandering provision, although I worked
with Senator Hatch to write the new pandering provision in the PROTECT
Act, I did not support Senator Hatch's amendment extending the
provision to cover ``purported'' material, which criminalizes speech
even when there is no underlying material at all--whether obscene or
non-obscene, virtual or real, child or adult.
The pandering provision is an important tool for prosecutors to
punish true child pornographers who for some technical reason are
beyond the reach of the normal child porn distribution or production
statutes. It is not meant to federally criminalize talking dirty over
the internet or the telephone when the person never possesses any
material at all. That is speech, and that goes too far.
The original pandering provision in S. 2520 was quite broad, and some
argued that it presented constitutional problems as written, but I
thought that prosecutors needed a strong tool, so I supported Senator
Hatch on that current provision.
I was heartened that Professor Schauer of Harvard, a noted First
Amendment expert, testified at our hearing that he thought that the
original provision was Constitutional, barely. Unfortunately, Professor
Schauer has since written to me stating that this new amendment to
include ``purported'' material ``would push well over the
constitutional edge a provision that is now up against the edge, but
probably barely on the constitutional side of it.'' I will place that
letter and other materials in the record with unanimous consent of the
Senate.
Because this change endangers the entire pandering provision, because
it is unwise, and because that section is already strong enough to
prosecute those who peddle child pornography, I hope that we can debate
the merits of that provision as the legislative process continues.
And as to the inclusion of 100 percent virtual child pornography in
``Identifiable Minor'' provision, a change to the definition of
``identifiable minor'' would expand the bill to cover ``virtual'' child
pornography that is, 100 percent computer generated pictures not
involving any real children. For that reason, it also presents
constitutional problems. I objected to this amendment when it was added
to the bill in the last Congress in Committee and I continue to have
serious concerns with it now.

Senator Hatch and I agree that legislation in this area is important.
But regardless of our personal views, any law must be within
constitutional limits or it does no good at all. This change which
would include all ``virtual child pornography'' in the definition of
child pornography, in my view, crosses the constitutional line,
however, and needlessly risks protracted litigation that could assist
child pornographers in escaping punishment. I hope we can work to
narrow this provision.
Although I joined Senator Hatch in introducing this bill, even when
it was introduced last year I expressed concern over certain
provisions. One such provision was the new definition of ``identifiable
minor.'' When the bill was introduced, I noted that this provision
might ``both confuse the statute unnecessarily and endanger the already
upheld 'morphing' section of the CPPA.'' I said I was concerned that it
``could present both overbreadth and vagueness problems in a later
constitutional challenge.''
The Supreme Court made it clear that we can only outlaw child
pornography in two situations: No. 1, it is obscene, or No. 2, it
involves real kids. That is the law as stated by the Supreme Court,
whether or not we agree with it.
The original ``identifiable minor'' provision in the PROTECT Act may
be used without any link to obscenity doctrine. Therefore, what saved
the original version as introduced in the 107th Congress was that it
applied to child porn made with real ``persons.'' The provision was
designed to cover all sorts of images of real kids that are morphed or
altered, but not something entirely made by computer, with no child
involved. That is the provision as Senator Hatch and I introduced this
bill last year.
The change adopted in the Judiciary Committee last year, however,
redefined ``identifiable minor'' by creating a new category of
pornography for any ``computer generated image that is virtually
indistinguishable from an actual minor'' dislodged, in my view, that
sole constitutional anchor. The new provision could be read to include
images that never involved real children at all but were 100 percent
computer generated.
That was never the goal of this provision and that was the reason it
was constitutional. There are other provisions in the bill that deal
with obscene virtual child pornography that I support. This provision
was intended to ease the prosecutor's burden in cases where images of
real children were cleverly altered to avoid prosecution.
I support the definition of ``identifiable minor'' as we originally
wrote and introduced it last Congress. Because this new change
seriously weakens the constitutional argument supporting this entire
provision, I oppose it and I hope that we can work to further narrow
this provision.
These provisions raise legitimate concerns, but in the interest of
making progress I support consideration of the measure as introduced. I
hope that we can work to debate these issues and improve it and produce
a bill with the best chance of withstanding a constitutional challenge.
That is not everyone's view. Others evidently think it is more
important to make an ideological statement than to write a law. A media
report on this legislation at the end of the last Congress reported the
wide consensus that the Hatch-Leahy bill was more likely than the House
bill to withstand scrutiny, but quoted a Republican House member as
stating: ``Even if it comes back to Congress three times we will have
created better legislation.''
To me, that makes no sense. Why not create the ``better legislation''
right now for today's children, instead of inviting more years of
litigation and putting at risk any convictions obtained in the interim
period before the Supreme Court again reviews the constitutionality of
Congress' effort to address this serious problem? That is what the
PROTECT Act seeks to accomplish.
Even though this bill is not perfect, I am glad to stand with Senator
Hatch to secure its approval by the Senate as I did in the last
Congress.
As I have explained, I believe that this issue is so important that I
have been willing to compromise and to support a measure even though I
do not agree with each and every provision that it contains. That is
how legislation is normally passed. I hope that the Administration and
the House do not decide to play politics with this issue

[[Page S243]]

this year as I fear they did at the close of the last Congress. I urge
swift consideration and passage of this important bill aimed at
protecting our nation's children.
Mr. President, I ask unanimous consent that the letters and materials
to which I referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
October 17, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Leahy: Thank you for the opportunity to
express the views of the National Center for Missing and
Exploited Children on these critically important issues for
our nation's children. Your stewardship of the Committee's
tireless efforts to craft a statute that will withstand
constitutional scrutiny is wise and in the long-term best
interest of the nation. The National Center for Missing and
Exploited Children is grateful for your leadership on this
issue.
Please find below my response to your written questions
submitted on October 9, 2002, regarding the ``Stopping Child
Pornography: Protecting our Children and the Constitution.''
1. Our view is that the vast majority (99-100%) of all
child pornography would be found to be obscene by most judges
and juries, even under the standard of beyond a reasonable
doubt in criminal cases. Even within the reasonable person
under community standards model, it is highly unlikely that
any community would not find child pornography obscene.
There is a legitimate concern that the obscenity standard
does not fully recognize, and therefore punish the
exceptional harm to children inherent in child pornography.
This issue can be addressed by the enactment of tougher
sentencing provisions if the obscenity standard is
implemented in the law regarding child pornography. Moreover,
mere possession of obscene materials under current law in
most jurisdictions is not a criminal violation. If the
obscenity standard were implemented for child pornography the
legislative intent should be clear concerning punishment for
possession of child obscene pornography.
In the post--Free Speech decision legal climate the
prosecution of child pornography cases under an obscenity
approach is a reasonable strategy and sound policy.
2. Based on my experience all the images in actual criminal
cases meet the lawful definition of obscenity, irrespective
of what community you litigate the case. In my experience
there has never been a visual depiction of child pornography
that did not meet the constitutional requirements for
obscenity.
3. The National Center for Missing and Exploited Children
fully supports the correction of this sentencing disparity
and welcomes the provision of additional tools for federal
judges to remove these predators from our communities. These
types of offenders belong to a demographic that is the
highest percentile in terms of recidivism than any other
single offender category.
4. The National Center for Missing and Exploited Children
fully supports language that allows only ``non-government
sources'' to provide tips to the CyberTipline. The role of
the CyberTipline at the National Center for Missing and
Exploited Children is to provide tips received from the
public and Electronic Communication Services communities and
make them available to appropriate law enforcement agencies.
Due in part to the overwhelming success of the system and in
part to the tragedies of September 11, 2001, federal law
enforcement resources cannot address all of the legitimate
tips and leads received by the CyberTipline. Allowing the
National Center for Missing and Exploited Children and
appropriate federal agencies to forward this information to
state and local law enforcement while at the same time
addressing legitimate privacy concerns is fully supported.
5. The victim shield provision is an excellent and timely
policy initiative and one that is fully supported by the
National Center for Missing and Exploited Children. This
provision should allow the narrow exception to a general non-
disclosure clause that anticipates the need for law
enforcement and prosecutors to use the victim's photography
and other relevant information for the sole purpose of
verification and authentication of an actual child victim in
future cases. This exception would allow the successful
prosecution of other cases that may involve a particular
victim and still provide the protection against the
revictimization by the criminal justice system.
6. The National Center for Missing and Exploited Children
fully supports extending the terms of authorized supervised
release in federal cases involving the exploitation of
minors. The evidence for extended supervision in such cases
is overwhelming. Without adequate treatment and continued
supervision, there is a significantly higher risk for re-
offending by this type of offender. Moreover, there is a
significant link between those offenders who possess child
pornography and those who sexually assault children. Please
see the attached studies that the National Center for Missing
and Exploited Children has produced on these issues.
Thank you again for the opportunity to address these
important issues. Should you need further input or assistance
please contact us at your convenience.
Sincerely,

Daniel Armagh,

Director, Legal Resource Division,
National Center for Missing and Exploited Children.
____

University of Virginia

School of Law

Charlottesville, VA, Nov. 28, 2002.
Senator Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Dear Chairman Leahy: On October 2, 2002, I testified before
the Senate Judiciary Committee concerning S. 2520 and H.R.
4623. Each of these bills was drafted in response to Ashcroft
v. Free Speech Coalition, 122 S.Ct. 1389 (2002), in which the
Supreme Court threw out key provisions of the federal child
pornography laws. As I stated in my testimony, the new
sections contained in S. 2520 have been carefully tailored
with an eye towards satisfying the precise concerns
identified by the Supreme Court. Recently, Senator Hatch
offered an amendment in the nature of a substitute to S. 2520
(hereinafter ``the Hatch Substitute''). I have examined the
Hatch Substitute, and I believe that it contains a definition
of child pornography that is nearly identical to the
definition rejected by Free Speech Coalition. Therefore, the
Hatch Substitute is unlikely to survive constitutional
challenge in the federal courts, and the Committee should
decline to adopt it.
As you know, each of these bills contains some complicated
provisions, including especially their definition sections.
As you also know, this complexity is unavoidable, for the
Congress aims to intervene in and eliminate some of the
complex law enforcement problems created by the phenomenon of
virtual pornography. In the following comments, I will try to
state my concerns about the Hatch Substitute as concisely as
possible, while identifying the statutory nuances that are
likely to generate significant constitutional questions in
the event that the Hatch Substitute is enacted.
In Free Speech Coalition, the Supreme Court scrutinized
provisions of the Child Pornography Prevention Act of 1996
(``CPPA'') that were designed to eliminate obstacles to law
enforcement created by virtual child pornography. The
proliferation of virtual pornography has enabled child
pornographers to escape conviction by arguing that it is so
difficult to distinguish the virtual child from the real one
that (1) the government cannot carry its burden of proving
that the pornography was made using real children and/or (2)
the government cannot carry its burden of proving scienter
because the defenders believed that the images in their
possession depicted virtual children, rather than real ones.
In order to foreclose these arguments, the CPPA defined
``child pornography'' broadly so that it extended not only to
a sexually-explicit image that had been produced using a real
minor, but also to an image that ``appears to be of a minor''
engaging in sexually-explicit conduct. Free Speech Coalition
rejected this definition on First Amendment grounds. The
Court reaffirmed the holding of New York v. Ferber, 458 U.S.
747 (1982), under which the government is free to regulate
sexually-explicit materials produced using real minors
without regard to the value of those materials. However, the
Court refused to extend the Ferber analysis to sexually-
explicit materials that only appear to depict minors. The
Court noticed that many mainstream movies, as well as works
of great artistic, literary, and scientific significance,
explore the sexuality of adolescents and children. Such
works, including ones that are sexually explicit, are
valuable in the eyes of the community, and, as long as
their production involves no real children, such works are
protected by the First Amendment against governmental
regulation.
In Free Speech Coalition, the Supreme Court expressly
considered and rejected a number of arguments made by the
Solicitor General on behalf of the CPPA definition. One of
these arguments was that the ``speech prohibited by the CPPA
is virtually indistinguishable from child pornography, which
may be banned without regard to whether it depicts works of
value.'' In his opinion for the Court, Justice Kennedy
explained that this argument fundamentally misconceived the
nature of the First Amendment inquiry. Materials that satisfy
the Ferber definition are regulable not because they are
necessarily without value; to the contrary, Ferber itself
recognized that some child pornography might have significant
value. Indeed, the Court there reasoned that the ban on the
use of actual children was permissible in part because
virtual images--by definition, images ``virtually
indistinguishable'' from child pornography--were an available
and lawful alternative. Hence, as Justice Kennedy put it:
``Ferber, then, not only referred to the distinction between
actual and virtual child pornography, it relied on [the
distinction] as a reason supporting its holding. Ferber
provides no support for a statute that eliminates the
distinction and makes the alternative mode criminal as
well.''
S. 2520 aims to reform the CPPA in ways that are sensitive
to these First Amendment value judgments. By contrast, the
Hatch Substitute proposes that the Congress should reenact a
definition that is almost identical to the one that the
Supreme Court just rejected. In the Hatch Substitute, the
definition of child pornography would cover,

[[Page S244]]

among other things, sexually-explicit materials whose
production involved the use of an ``identifiable minor.'' The
Hatch Substitute defines ``identifiable minor'' as including
a ``computer or computer generated image that is virtually
indistinguishable from an actual minor.'' As I explained
above, the Solicitor General suggested in Free Speech
Coalition that the First Amendment would be satisfied if the
Supreme Court limited the CPPA to depictions that are
``virtually indistinguishable'' from child pornography, and
the Court rejected that interpretation. To put it mildly, it
is hard to imagine that the Supreme Court would be inclined
to view the Hatch Substitute as a good-faith legislative
response to Free Speech Coalition when all it does is reenact
a definition that the Court there expressly considered and
disapproved. You will notice that I here am paraphrasing the
definition provisions in the Hatch Substitute and omitting
some of their complexity. In particular, the Hatch Substitute
provides a further definition of the phrase ``virtually
indistinguishable,'' requiring that the quality of the
depiction be determined from the viewpoint of an ``ordinary
person'' and providing an exception for ``drawings, cartoons,
sculptures, or paintings.'' But neither the definition of
``identifiable minor'' nor these refinements of ``virtually
indistinguishable'' are calculated to satisfy the concerns
raised in Free Speech Coalition. As Justice Kennedy explained
for the Court, an absolute ban on pornography made with real
children is compatible with First Amendment rights precisely
because computer-generated images are an available
alternative, and, yet, the Hatch Substitute proposes to
forbid the computer-generated alternative as well. Likewise,
an exception for cartoons and so forth is insensitive to the
Supreme Court's commitment to protect realistic portrayals of
child sexuality, a commitment that is clearly expressed in
the Court's recognition of the value of (among other things)
mainstream movies such as Traffic and American Beauty.
In this regard, you will notice that the Hatch Substitute
closely resembles some of the defective provisions of H.R.
4623, which would prohibit virtual child porn that is
``indistinguishable'' from porn produced with real minors.
Unlike S. 2520, both H.R. 4623 and the Hatch Substitute seem
to embody a decision merely to endorse the unconstitutional
portions of the CPPA all over again. The Committee should
refuse to engage in such a futile and disrespectful exercise.
The law enforcement problems posed by virtual pornography are
not symbolic but real, and the Congress should make a real
effort to solve them. In my judgment, S. 2520 is a real
effort to solve them, and the Committee should use S. 2520 as
the basis for correcting the CPPA.
The Hatch Substitute contains additional innovations that
the Committee should study carefully. Because this letter
already is too long, I will allude to only one of them here.
The ``pandering'' provision set forth in the Hatch Substitute
contains some language that strikes me as being both vague
and unnecessarily broad, and the provision therefore is
likely to attract unfavorable attention in the federal
courts. The Hatch pandering provision would punish anyone who
``advertises, promotes, presents, distributes, or solicits .
. . any material or purported material in a manner that
conveys the impression that the material or purported
material'' is child pornography. To be completely candid, I
am not sure that I understand what problems would be solved
by defining the items that may not be pandered so that they
include not only actual ``material,'' but also ``purported
material.'' I suppose that there might be cases where a
person offers to sell pornographic materials that do not
actually exist and that the person might make the offer in a
manner that violates the pandering prohibition. If that is
the problem that the drafters of the Hatch Substitute have in
mind, it seems that they might solve that problem more
cleanly by adding the word ``offers'' to the list of
forbidden conduct and deleting the reference to ``purported
material.'' (In other words, the provision would punish
anyone who ``advertises, offers, promotes, presents,
distributes, or solicits through the mails . . . any material
on a manner that conveys the impression that the material''
is child pornography.) If that is not the problem that the
Hatch Substitute has in mind, I would suggest that the
drafters identify the problem precisely and develop language
that is clearer and narrower than the phrase ``purported
material,'' for that ambiguous term is likely to generate
First Amendment concerns that otherwise could and should be
avoided.
Respectfully yours,
Anne M. Coughlin,
Class of 1948 Research Professor of Law.
____

Washington, DC, Oct. 11, 2002.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Dear Chairman Leahy: I want to thank you for your efforts
to protect American children by filling the gap left by the
Supreme Court's decision to strike down the Child Pornography
Prevention Act. Ashcroft v. Free Speech Coalition dealt a
blow to those who appreciate the important role the federal
government must ply in protecting young people from those who
would exploit them. Your efforts to craft a bill, the PROTECT
Act, that will withstand Constitutional scrutiny deserves the
public's applause.
I would like to draw your attention to a similar, but
separate, matter that also reflects on the health and
security of our children in regards to pornography. Like the
Child Pornography Prevention Act, the Child Internet
Protection Act (CIPA), which was passed by the 106th
Congress, has been struck down by the federal judiciary. In
American Library Association, et al. v. United States of
America, et al, a District Court in Pennsylvania threw CIPA
out, arguing that its efforts to prevent children from
exposure to harmful material on school and library computers
amounted to a violation of the First Amendment. The Justice
Department has appealed that case to the Supreme Court, where
the lower court's decision will very likely be upheld.
Unfortunately, as Harvard Law School professor Frederick
Schauer testified at the hearing you recently held on CPPA,
``constitutionally suspect legislation under existing Supreme
Court interpretation of the First Amendment, whatever we may
think of the wisdom and accuracy of those interpretations,
puts the process of [prosecution] . . . on hold while the . .
. courts proceed at their own pace.
I think we ought not wait for what will likely be a
disappointing conclusion. Rather, I hope you will lead an
effort to craft new legislation which (1) passes
Constitutional muster, and (2) better enables schools and
libraries to protect children from harmful images and
websites. Let me take a moment to delimit how exactly a new,
improved Children's Internet Protection Act would differ from
the bill passed by the 106th Congress.
First, a new bill should distinguish clearly between
measures affecting adults and minors. Though the title of the
legislation is the Children's Internet Protection Act, it
requires technology protection measures on all computers with
Internet access, regardless of the age of the patron using
each computer. If the aim is to protect minors, it is
unnecessary to put filters on every computer in a library.
This, of course, was one of the District Court's primary
concerns. I hope you will draft legislation requiring
separate computers for adults and minors. All those under 18
should be required to use filtered computers, unless
accompanied by a parent or teacher. Those over 18 should have
access to un-filtered computers in a separate area. I smaller
facilities, where only one computer is available, special
adult hours could be set during which the filter is disabled
and only adults may use the computer. The rest of the time a
filter would be in place.
Second, I would encourage you to incorporate language that
distinguishes children 12 and under from teenagers 13-18.
Teenagers have greater capacities to process information than
children, as well as different needs for information. In
recognition of this, I would hope that your new bill would
require different policies for children and teenagers, such
as providing different filter settings.
Third, I hope you will consider expanding the scope of your
bill to include provisions that protect minors from violent
images as well as sexual ones. I realize that limiting the
access of children to violent content poses a potentially
more difficult constitutional question, but based on the
weight of social science evidence showing the harm caused to
children by violence in the media, I believe that violence
must be included in any definition of content that is
``harmful to children.''
To further explain the reasoning behind these
recommendations, I am enclosing a law review article, ``On
Protecting Children from Speech,'' which will be published
next fall in the Chicago-Kent Law Review. I would welcome the
opportunity to discuss our position with you further. In the
meantime, please feel free to contact Marc Dunkelman,
Assistant Director of the Communitarian Network, with any
questions. Thank you for your consideration.
Sincerely,
Amitai Etzioni,
Founder & Director.
____

May 13, 2002.
Chairman Patrick J. Leahy,
U.S. Senate Judiciary Committee,
Washington, DC.
Dear Chairman Leahy: We write to express our grave concern
with the legislation recently proposed by the Department of
Justice in response to the Supreme Court's decision in
Ashcroft, et al. v. The Free Speech Coalition, et al., No.
00-795 (Apr. 16, 2002). In particular, the proposed
legislation purports to ban speech that is neither obscene
nor unprotected child pornography (indeed, the bill expressly
targets images that do not involve real human beings at all).
Accordingly, in our view, it suffers from the same
infirmities that led the Court to invalidate the statute at
issue in Ashcroft.
We emphasize that we share the revulsion all Americans feel
toward those who harm children, and fully support legitimate
efforts to eradicate child pornography. As the Court in
Ashcroft emphasized, however, in doing so Congress must act
within the limits of the First Amendment. In our view, the
bill proposed by the Department of Justice fails to do so.
Respectfully submitted,
Jodie L. Kelley,
Partner, Jenner & Block, LLC, Washington, DC.
Erwin Chemerinsky,
Sydney M. Irmas Professor of Public Interest Law, Legal
Ethics and Political

[[Page S245]]

Science, University of Southern California Law School, Los
Angeles, CA.
Paul Hoffman,
Partner, Schonbrun, DeSimone, Seplow, Harris & Hoffman,
LLP, Venice, CA.
Adjunct Professor, University of Southern California Law
School, Los Angeles, CA.
Gregory P. Magarian,
Assistant Professor of Law, Villanova University School of
Law, Villanova, PA.
Jamin Raskin,
Professor of Law, American University, Washington College
of Law, Washington, DC.
Donald B. Verrilli, Jr.,
Partner, Jenner & Block, LLC, Washington, DC.
____

Harvard University,John F. Kennedy School of Government,
Cambridge, MA, October 3, 2002.
Re S. 2520.

Hon. Patrick Leahy,
U.S. Senate, Committee on the Judiciary, Washington, DC.
Dear Senator Leahy: Following up on my written statement
and on my oral testimony before the Committee on Wednesday,
October 2, 2002, the staff of the Committee has asked me to
comment on the constitutional implications of changing the
current version of S. 2520 to change the word ``material'' in
Section 2 of the bill (page 2, lines 17 and 19) to
``purported material.''
In my opinion the change would push well over the
constitutional edge a provision that is now right up against
that edge, but probably barely on the constitutional side of
it.
As I explained in my statement and orally, the Supreme
Court has from the Ginzburg decision in 1966 to the Hamling
decision in 1973 to the Free Speech Coalition decision in
2002 consistently refused to accept that ``pandering'' may be
an independent offense, as opposed to being evidence of the
offense of obscenity (and, by implication, child
pornography). The basic premise of the pandering prohibition
in S. 2520 is thus in some tension with more than thirty-five
years of Supreme Court doctrine. What may save the provision,
however, is the fact that pandering may also be seen as
commercial advertisement, and the commercial advertisement of
an unlawful product or service is not protected by the
Supreme Court's commercial speech doctrine, as the Court made
clear in both Virginia Pharmacy and also in Pittsburgh Press
v. Human Relations Commission, 413 U.S. 376 (1973). It is
important to recognize, however, that this feature of
commercial speech doctrine does not apply to non-commercial
speech, where the description on advocacy of illegal acts is
fully protected unless under the narrow circumstances, not
applicable here, of immediate incitement.
The implication of this is that moving away from
communication that could be described as an actual commercial
advertisement decreases the availability of this approach to
defending Section 2 of S. 2520. Although it may appear as if
advertising ``material'' that does not exist at all
(``purported material'') makes little difference, there is a
substantial risk that the change moves the entire section
away from the straight commercial speech category into more
general description, conversation, and perhaps even advocacy.
Because the existing arguments for the constitutionality of
this provision are already difficult ones after Free Speech
Coalition, anything that makes this provision less like a
straight offer to engage in a commercial transaction
increases the degree of constitutional jeopardy. By including
``purported'' in the relevant section, the pandering looks
less commercial, and thus less like commercial speech, and
thus less open to constitutional defense I outlined in my
written statement and oral testimony.
I hope that this is helpful.
Yours sincerely,
Frederick Schauer,
Frank Stanton Professor of the First Amendment.

____________________