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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-526

======================================================================



 
         CHILD OBSCENITY AND PORNOGRAPHY PREVENTION ACT OF 2002

                                _______
                                

 June 24, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4623]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4623) to prevent trafficking in child pornography 
and obscenity, to proscribe pandering and solicitation relating 
to visual depictions of minors engaging in sexually explicit 
conduct, to prevent the use of child pornography and obscenity 
to facilitate crimes against children, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     8
Background and Need for the Legislation..........................     8
Hearings.........................................................    14
Committee Consideration..........................................    14
Vote of the Committee............................................    14
Committee Oversight Findings.....................................    15
Performance Goals and Objectives.................................    15
New Budget Authority and Tax Expenditures........................    15
Congressional Budget Office Cost Estimate........................    15
Constitutional Authority Statement...............................    17
Section-by-Section Analysis and Discussion.......................    17
Changes in Existing Law Made by the Bill, as Reported............    28
Markup Transcript................................................    40
Dissenting Views.................................................    93

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Obscenity and Pornography 
Prevention Act of 2002''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Obscenity and child pornography are not entitled to 
        protection under the First Amendment under Miller v. 
        California, 413 U.S. 15 (1973) (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 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. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.

    (a) Section 2256(8)(B) of title 18, United States Code, is amended 
to read as follows:
                    ``(B) such visual depiction is a computer image or 
                computer-generated image that is, or is 
                indistinguishable (as defined in section 1466A) from, 
                that of a minor engaging in sexually explicit conduct; 
                or''.
    (b) Section 2256(2) of title 18, United States Code, is amended to 
read as follows:
            ``(2)(A) Except as provided in subparagraph (B), `sexually 
        explicit conduct' means actual or simulated--
                    ``(i) sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-anal, 
                whether between persons of the same or opposite sex;
                    ``(ii) bestiality;
                    ``(iii) masturbation;
                    ``(iv) sadistic or masochistic abuse; or
                    ``(v) lascivious exhibition of the genitals or 
                pubic area of any person;
            ``(B) For purposes of subsection 8(B) of this section, 
        `sexually explicit conduct' means--
                    ``(i) actual sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-anal, 
                whether between persons of the same or opposite sex, or 
                lascivious simulated sexual intercourse where the 
                genitals, breast, or pubic area of any person is 
                exhibited;
                    ``(ii) actual or lascivious simulated;
                            ``(I) bestiality;
                            ``(II) masturbation; or
                            ``(III) sadistic or masochistic abuse; or
                    ``(iii) actual or simulated lascivious exhibition 
                of the genitals or pubic area of any person;''.
    (c) Section 2252A(c) of title 18, United States Code, is amended to 
read as follows:
    ``(c)(1) Except as provided in paragraph (2), it shall be an 
affirmative defense to a charge of violating this section that the 
alleged offense did not involve the use of a minor or an attempt or 
conspiracy to commit an offense under this section involving such use.
    ``(2) A violation of, or an attempt or conspiracy to violate, this 
section which involves child pornography as defined in section 
2256(8)(A) or (C) shall be punishable without regard to the affirmative 
defense set forth in paragraph (1).''.

SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.

    (a) Section 2256(8) of title 18, United States Code, is amended--
            (1) in subparagraph (C), by striking ``or'' at the end and 
        inserting ``and''; and
            (2) by striking subparagraph (D).
    (b) Chapter 110 of title 18, United States Code, is amended--
            (1) by inserting after section 2252A the following:

``Sec. 2252B. Pandering and solicitation

    ``(a) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to provide or sell a visual 
depiction to another, and who in connection therewith knowingly 
advertises, promotes, presents, or describes the visual depiction with 
the intent to cause any person to believe that the material is, or 
contains, a visual depiction of a minor engaging in sexually explicit 
conduct shall be subject to the penalties set forth in section 
2252A(b)(1), including the penalties provided for cases involving a 
prior conviction.
    ``(b) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to receive or purchase from 
another a visual depiction that he believes to be, or to contain, a 
visual depiction of a minor engaging in sexually explicit conduct shall 
be subject to the penalties set forth in section 2252A(b)(1), including 
the penalties provided for cases involving a prior conviction.
    ``(c) It is not a required element of any offense under this 
section that any person actually provide, sell, receive, purchase, 
possess, or produce any visual depiction.
    ``(d) The circumstance referred to in subsection (a) and (b) is 
that--
            ``(1) any communication involved in or made in furtherance 
        of the offense is communicated or transported by the mail, or 
        in interstate or foreign commerce by any means, including by 
        computer, or any means or instrumentality of interstate or 
        foreign commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            ``(2) any communication involved in or made in furtherance 
        of the offense contemplates the transmission or transportation 
        of a visual depiction by the mail, or in interstate or foreign 
        commerce by any means, including by computer;
            ``(3) any person travels or is transported in interstate or 
        foreign commerce in the course of the commission or in 
        furtherance of the commission of the offense;
            ``(4) any visual depiction involved in the offense has been 
        mailed, or has been shipped or transported in interstate or 
        foreign commerce by any means, including by computer, or was 
        produced using materials that have been mailed, or that have 
        been shipped or transported in interstate or foreign commerce 
        by any means, including by computer; or
            ``(5) the offense is committed in the special maritime and 
        territorial jurisdiction of the United States or in any 
        territory or possession of the United States.'';
            (2) in the analysis for the chapter, by inserting after the 
        item relating to section 2252A the following:

``2252B. Pandering and solicitation.''.

SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.

    (a) Chapter 71 of title 18, United States Code, is amended--
            (1) by inserting after section 1466 the following:

``Sec. 1466A. Obscene visual depictions of young children

    ``(a) Whoever, in a circumstance described in subsection (d), 
knowingly produces, distributes, receives, or possesses with intent to 
distribute a visual depiction that is, or is indistinguishable from, 
that of a pre-pubescent child engaging in sexually explicit conduct, or 
attempts or conspires to do so, shall be subject to the penalties set 
forth in section 2252A(b)(1), including the penalties provided for 
cases involving a prior conviction.
    ``(b) Whoever, in a circumstance described in subsection (d), 
knowingly possesses a visual depiction that is, or is indistinguishable 
from, that of a pre-pubescent child engaging in sexually explicit 
conduct, or attempts or conspires to do so, shall be subject to the 
penalties set forth in section 2252A(b)(2), including the penalties 
provided for cases involving a prior conviction.
    ``(c) For purposes of this section--
            ``(1) the term `visual depiction' includes undeveloped film 
        and videotape, and data stored on computer disk or by 
        electronic means which is capable of conversion into a visual 
        image, and also includes any photograph, film, video, picture, 
        or computer or computer-generated image or picture, whether 
        made or produced by electronic, mechanical, or other means;
            ``(2) the term `pre-pubescent child' means that (A) the 
        child, as depicted, is one whose physical development indicates 
        the child is 12 years of age or younger; or (B) the child, as 
        depicted, does not exhibit significant pubescent physical or 
        sexual maturation. Factors that may be considered in 
        determining significant pubescent physical maturation include 
        body habitus and musculature, height and weight proportion, 
        degree of hair distribution over the body, extremity proportion 
        with respect to the torso, and dentition. Factors that may be 
        considered in determining significant pubescent sexual 
        maturation include breast development, presence of axillary 
        hair, pubic hair distribution, and visible growth of the sexual 
        organs;
            ``(3) the term `sexually explicit conduct' has the meaning 
        set forth in section 2256(2); and
            ``(4) the term `indistinguishable' used with respect to a 
        depiction, means virtually indistinguishable, in that the 
        depiction is such that an ordinary person viewing the depiction 
        would conclude that the depiction is of an actual minor engaged 
        in sexually explicit conduct. This definition does not apply to 
        depictions that are drawings, cartoons, sculptures, or 
        paintings depicting minors or adults.
    ``(d) The circumstance referred to in subsections (a) and (b) is 
that--
            ``(1) any communication involved in or made in furtherance 
        of the offense is communicated or transported by the mail, or 
        in interstate or foreign commerce by any means, including by 
        computer, or any means or instrumentality of interstate or 
        foreign commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            ``(2) any communication involved in or made in furtherance 
        of the offense contemplates the transmission or transportation 
        of a visual depiction by the mail, or in interstate or foreign 
        commerce by any means, including by computer;
            ``(3) any person travels or is transported in interstate or 
        foreign commerce in the course of the commission or in 
        furtherance of the commission of the offense;
            ``(4) any visual depiction involved in the offense has been 
        mailed, or has been shipped or transported in interstate or 
        foreign commerce by any means, including by computer, or was 
        produced using materials that have been mailed, or that have 
        been shipped or transported in interstate or foreign commerce 
        by any means, including by computer; or
            ``(5) the offense is committed in the special maritime and 
        territorial jurisdiction of the United States or in any 
        territory or possession of the United States.
    ``(e) In a case under subsection (b), it is an affirmative defense 
that the defendant--
            ``(1) possessed less than three such images; and
            ``(2) promptly and in good faith, and without retaining or 
        allowing any person, other than a law enforcement agency, to 
        access any image or copy thereof--
                    ``(A) took reasonable steps to destroy each such 
                image; or
                    ``(B) reported the matter to a law enforcement 
                agency and afforded that agency access to each such 
                image.

``Sec. 1466B. Obscene visual representations of pre-pubescent sexual 
                    abuse

    ``(a) Whoever, in a circumstance described in subsection (e), 
knowingly produces, distributes, receives, or possesses with intent to 
distribute a visual depiction of any kind, including a drawing, 
cartoon, sculpture, or painting, that--
            ``(1) depicts a pre-pubescent child engaging in sexually 
        explicit conduct, and
            ``(2) is obscene, or who attempts or conspires to do so, 
        shall be subject to the penalties set forth in section 
        2252A(b)(1), including the penalties provided for cases 
        involving a prior conviction.
    ``(b) Whoever, in a circumstance described in subsection (e), 
knowingly possesses a visual depiction of any kind, including a 
drawing, cartoon, sculpture, or painting, that--
            ``(1) depicts a pre-pubescent child engaging in sexually 
        explicit conduct, and
            ``(2) is obscene,
    ``or who attempts or conspires to do so, shall be subject to the 
penalties set forth in section 2252A(b)(2), including the penalties 
provided for cases involving a prior conviction.
    ``(c) It is not a required element of any offense under this 
section that the pre-pubescent child depicted actually exist.
    ``(d) For purposes of this section, the terms `visual depiction' 
and `pre-pubescent child' have respectively the meanings given those 
terms in seciton 1466A, and the term `sexually explicit conduct' has 
the meaning given that term in section 2256(2)(B).
    ``(e) The circumstance referred to in subsection (a) and (b) is 
that--
            ``(1) any communication involved in or made in furtherance 
        of the offense is communicated or transported by the mail, or 
        in interstate or foreign commerce by any means, including by 
        computer, or any means or instrumentality of interstate or 
        foreign commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            ``(2) any communication involved in or made in furtherance 
        of the offense contemplates the transmission or transportation 
        of a visual depiction by the mail, or in interstate or foreign 
        commerce by any means, including by computer;
            ``(3) any person travels or is transported in interstate or 
        foreign commerce in the course of the commission or in 
        furtherance of the commission of the offense;
            ``(4) any visual depiction involved in the offense has been 
        mailed, or has been shipped or transported in interstate or 
        foreign commerce by any means, including by computer, or was 
        produced using materials that have been mailed, or that have 
        been shipped or transported in interstate or foreign commerce 
        by any means, including by computer; or
            ``(5) the offense is committed in the special maritime and 
        territorial jurisdiction of the United States or in any 
        territory or possession of the United States.
    ``(f) In a case under subsection (b), it is an affirmative defense 
that the defendant--
            ``(1) possessed less than three such images; and
            ``(2) promptly and in good faith, and without retaining or 
        allowing any person, other than a law enforcement agency, to 
        access any image or copy thereof--
                    ``(A) took reasonable steps to destroy each such 
                image; or
                    ``(B) reported the matter to a law enforcement 
                agency and afforded that agency access to each such 
                image.''; and
            (2) in the analysis for the chapter, by inserting after the 
        item relating to section 1466 the following:

``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual 
abuse.''.
    (b)(1) Except as provided in paragraph (2), the applicable category 
of offense to be used in determining the sentencing range referred to 
in section 3553(a)(4) of title 18, United States Code, with respect to 
any person convicted under section 1466A or 1466B of such title, shall 
be the category of offenses described in section 2G2.2 of the 
Sentencing Guidelines.
    (2) The Sentencing Commission may promulgate guidelines 
specifically governing offenses under section 1466A of title 18, United 
States Code, provided that such guidelines shall not result in 
sentencing ranges that are lower than those that would have applied 
under paragraph (1).

SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST 
                    MINORS.

    Chapter 71 of title 18, United States Code, is amended--
            (1) by inserting at the end the following:

``Sec. 1471. Use of obscene material or child pornography to facilitate 
                    offenses against minors

    ``(a) Whoever, in any circumstance described in subsection (c), 
knowingly--
            ``(1) provides or shows to a person below the age of 16 
        years any visual depiction that is, or is indistinguishable 
        from, that of a pre-pubescent child engaging in sexually 
        explicit conduct, any obscene matter, or any child pornography; 
        or
            ``(2) provides or shows any obscene matter or child 
        pornography, or any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child engaging 
        in sexually explicit conduct, or any other material assistance 
        to any person in connection with any conduct, or any attempt, 
        incitement, solicitation, or conspiracy to engage in any 
        conduct, that involves a minor and that violates chapter 109A, 
        110, or 117, or that would violate chapter 109A if the conduct 
        occurred in the special maritime and territorial jurisdiction 
        of the United States,
shall be subject to the penalties set forth in section 2252A(b)(1), 
including the penalties provided for cases involving a prior 
conviction.
    ``(b) For purposes of this section--
            ``(1) the term `child pornography' has the meaning set 
        forth in section 2256(8);
            ``(2) the terms `visual depiction', `pre-pubescent child', 
        and `indistinguishable' have the meanings respectively set 
        forth for those terms in section 1466A(c); and
            ``(3) the term `sexually explicit conduct' has the meaning 
        set forth in section 2256(2).
    ``(c) The circumstance referred to in subsection (a) is that--
            ``(1) any communication involved in or made in furtherance 
        of the offense is communicated or transported by the mail, or 
        in interstate or foreign commerce by any means, including by 
        computer, or any means or instrumentality of interstate or 
        foreign commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            ``(2) any communication involved in or made in furtherance 
        of the offense contemplates the transmission or transportation 
        of a visual depiction or obscene matter by the mail, or in 
        interstate or foreign commerce by any means, including by 
        computer;
            ``(3) any person travels or is transported in interstate or 
        foreign commerce in the course of the commission or in 
        furtherance of the commission of the offense;
            ``(4) any visual depiction or obscene matter involved in 
        the offense has been mailed, or has been shipped or transported 
        in interstate or foreign commerce by any means, including by 
        computer, or was produced using materials that have been 
        mailed, or that have been shipped or transported in interstate 
        or foreign commerce by any means, including by computer; or
            ``(5) the offense is committed in the special maritime and 
        territorial jurisdiction of the United States or in any 
        territory or possession of the United States.'';
            (2) in the analysis for the chapter, by inserting at the 
        end the following:

``1471. Use of obscene material or child pornography to facilitate 
offenses against minors.''.

SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR 
                    DISTRIBUTION IN THE UNITED STATES.

    Section 2251 is amended--
            (1) by striking ``subsection (d)'' each place it appears in 
        subsections (a), (b), and (c) and inserting ``subsection (e)'';
            (2) by redesignating subsections (c) and (d), respectively, 
        as subsections (d) and (e); and
            (3) by inserting after subsection (b) a new subsection (c) 
        as follows:
    ``(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 
possessions and Territories, for the 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 possessions, or 
        territories, by any means including by computer or mail;
            ``(B) the person transports such visual depiction to, or 
        otherwise makes it available within, the United States, its 
        possessions, or territories, by any means including by computer 
        or mail.''.

SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.

    Sections 2251(e) (as redesignated by section 7(2)), 2252(b), and 
2252A(b) of title 18, United States Code, are each amended by inserting 
``chapter 71,'' immediately before each occurrence of ``chapter 
109A,''.

SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED 
                    INFORMATION.

    (a) Section 227 of the Victims of Child Abuse Act of 1990 (42 
U.S.C. 13032) is amended--
            (1) in subsection (b)(1)--
                    (A) by inserting ``2252B,'' after ``2252A,''; and
                    (B) by inserting ``or a violation of section 1466A 
                or 1466B of that title,'' after ``of that title),'';
            (2) in subsection (c), by inserting ``or pursuant to'' 
        after ``to comply with'';
            (3) 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.'';
            (4) by redesignating paragraph (3) of subsection (b) as 
        paragraph (4); and
            (5) 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.''.
    (b) Section 2702 of title 18, United States Code is amended--
            (1) in subsection (b)--
                    (A) in paragraph (6)--
                            (i) by inserting ``or'' at the end of 
                        subparagraph (A)(ii);
                            (ii) by striking subparagraph (B); and
                            (iii) by redesignating subparagraph (C) as 
                        subparagraph (B);
                    (B) by redesignating paragraph (6) as paragraph 
                (7);
                    (C) by striking ``or'' at the end of paragraph (5); 
                and
                    (D) by inserting after paragraph (5) the following 
                new paragraph:
            ``(6) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto under 
        section 227 of the Victims of Child Abuse Act of 1990 (42 
        U.S.C. 13032); or''; and
            (2) in subsection (c)--
                    (A) by striking ``or'' at the end of paragraph (4);
                    (B) by redesignating paragraph (5) as paragraph 
                (6); and
                    (C) by adding after paragraph (4) the following new 
                paragraph:
            ``(5) to the National Center for Missing and Exploited 
        Children, in connection with a report submitted thereto under 
        section 227 of the Victims of Child Abuse Act of 1990 (42 
        U.S.C. 13032); or''.

SEC. 10. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person or circumstance, is held invalid, the remainder of this 
Act, and the application of such provision to other persons not 
similarly situated or to other circumstances, shall not be affected by 
such invalidation.

SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.

    Section 3486(a)(1)(C)(i) of title 18, United States Code, is 
amended by striking ``the name, address'' and all that follows through 
``subscriber or customer'' and inserting ``the information specified in 
section 2703(c)(2)''.

                          Purpose and Summary

    H.R. 4623, the ``Child Obscenity and Pornography Prevention 
Act of 2002,'' addresses the April 16, 2002 Supreme Court 
decision in Ashcroft v. the Free Speech Coalition \1\ to ensure 
the continued protection of children from sexual exploitation. 
In response to the Court decision, this bill narrows the 
definition of child pornography, strengthens the existing 
affirmative defense, amends the obscenity laws to address 
virtual and real child pornography that involves visual 
depictions of pre-pubescent children, creates new offenses 
against pandering visual depictions as child pornography, and 
creates new offenses against providing children obscene or 
pornographic material.
---------------------------------------------------------------------------
    \1\ 122 S.Ct. 1389 (2002).
---------------------------------------------------------------------------

                Background and Need for the Legislation

The Ashcroft v. Free Speech Coalition
    On April 16, 2002, the Supreme Court, in Ashcroft v. Free 
Speech Coalition, held that two parts of the Federal definition 
of child pornography in title 18 of the United States Code were 
overbroad and unconstitutional. Those two provisions are 18 
U.S.C. Sec. 2256(8)(B), which defined child pornography to 
include wholly computer generated pictures that appear to be of 
a minor engaging in sexually explicit conduct, and 18 U.S.C. 
Sec. 2256(8)(D), which defines child pornography to include a 
visual depiction where it is advertised, promoted, or 
presented, to convey the impression that the material contains 
a visual depiction of a minor engaging in sexually explicit 
conduct.
    This decision did not hold that all virtual child 
pornography was protected by the First Amendment. For instance, 
the Court mentions, in dicta, that ``[a]lthough morphed images 
may fall within the definition of virtual child pornography, 
they [morphed images] implicate the interests of real children 
and are in that sense closer to the images in Ferber.'' \2\ In 
New York v. Ferber, the Court found child pornography was not 
entitled to First Amendment protection because of the State's 
interest in protecting children.\3\ The Court reasoned that 
``the use of [real] children as subjects of pornographic 
materials is harmful to the physiological, emotional, and 
mental health of the child.'' \4\ It should be noted that 
computer technology did not exist in 1982 to create computer-
generated visual depictions that are indistinguishable from 
depictions of real children.\5\
---------------------------------------------------------------------------
    \2\ Id. at 1397 (the Court discusses a third section of the 
definition of child pornography under the Federal statute, which was 
not challenged. That definition is under 18 U.S.C. Sec. 2256(8)(C) and 
prohibits creating virtual images by morphing.)
    \3\ 458 U.S. 747 (1982).
    \4\ Id. at 758.
    \5\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm.Crime, 
Terrorism, and Homeland Security, Comm. on the Judiciary, 107th Cong. 
(2002) (prepared statement of Ernest E. Allen, President & Chief 
Executive Officer, National Center for Missing and Exploited Children).
---------------------------------------------------------------------------
    Further, the Court did not hold that Congress was not 
allowed to prohibit virtual child pornography when the 
prohibition is narrowly-drawn to promote a compelling 
government interest. In fact, the Court in its opinion, 
expressly left that option open for Congress. The Court stated: 
``We need not decide, however, whether the Government could 
impose this burden on a speaker. Even if an affirmative defense 
can save a statute from First Amendment challenge, here the 
defense is incomplete and insufficient, even on its own 
terms.'' \6\ Justice Thomas in his concurring opinion stated 
that the ``Court does leave open the possibility that a more 
complete affirmative defense could save a statute's 
constitutionality, see ante, at 1405, implicitly accepting that 
some regulation of virtual child pornography might be 
constitutional.'' \7\ No member of the Court took exception 
with his conclusion.
---------------------------------------------------------------------------
    \6\ Free Speech Coalition, 122 S.Ct. at 1405 (2002).
    \7\ Id. at 1407 (2002) (Thomas, J., concurring).
---------------------------------------------------------------------------
The Government's Compelling Interest to have Effective Prosecution of 
        those who Sexual Exploit Children
    Congress clearly has a compelling interest to protect 
children from sexual exploitation. That interest extends to the 
prosecution of those who would or do exploit children.
    A representative from the Department of Justice testified:

        As Justice Thomas noted in his concurring opinion, ``if 
        technological advances thwart prosecution of `unlawful 
        speech,' the Government may well have a compelling 
        interest in barring or otherwise regulating some narrow 
        category of `lawful speech' in order to enforce 
        effectively laws against pornography made through the 
        abuse of real children.'' 122 S. Ct. at 1406-07 
        (Thomas, J., concurring in the judgment). Similarly, 
        Justice O'Connor noted in her opinion concurring in 
        part and dissenting in part that, ``given the rapid 
        pace of advances in computer-graphics technology, the 
        Government's concern is reasonable.'' Id. at 1409. 
        Moreover, to avert serious harms, Congress may rely on 
        reasonable predictive judgments, even when legislating 
        in an area implicating freedom of speech. See Turner 
        Broad. Sys. Inc. v. FCC, 520 U.S. 180, 210-11 (1997). 
        We believe that Congress has a strong basis for 
        concluding that the very existence of sexually explicit 
        computer images that are virtually indistinguishable 
        from images of real minors engaged in sexually explicit 
        conduct poses a serious danger to future prosecutions 
        involving child pornography. Indeed, we already have 
        some sense of the impact of the Court's decision. The 
        Ninth Circuit had invalidated the same provisions of 
        law in 1999, and all accounts indicate that the number 
        and scope of child pornography prosecutions brought by 
        our prosecutors in the Ninth Circuit has been adversely 
        impacted.\8\
---------------------------------------------------------------------------
    \8\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and 
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism 
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. (prepared statement of Dan Collins, Associate Deputy Attorney 
General, Department of Justice).

    Prosecutions are threatened because the vast majority of 
child pornography prosecutions today involve images contained 
on computer hard drives, computer disks, or related media. This 
poses a serious problem for the effective prosecution of those 
who sexually exploit children. Evidence submitted to the 
Congress demonstrated that computer technology exists today to 
disguise depictions of real children to make them 
unidentifiable and to make depictions of real children appear 
computer generated. Furthermore, the evidence illustrated that 
the technology will soon exist, if it does not already, to make 
depictions of virtual children look real and completely 
indistinguishable. At a May 1, 2002 hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security, the 
President and Chief Executive Officer (CEO) of the National 
Center for Missing and Exploited Children (NCMEC) demonstrated 
the difficulty in distinguishing depictions of real children 
from computer-generated children. The NCMEC produced a 100 
percent computer-generated picture with an ``off-the-shelf'' 
software product.\9\
---------------------------------------------------------------------------
    \9\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm.Crime, 
Terrorism, and Homeland Security, Comm. on the Judiciary, 107th Cong. 
(2002).
---------------------------------------------------------------------------
    Now, the mere possibility that this type of technology was 
used provides sexual predators who utilized a computer with a 
claim that the child pornography they possess does not contain 
real children. Appeals for such convictions are occurring 
throughout the Nation.
    The San Antonio Express-News reported that on June 13, in a 
``sharply worded order'' the U.S. District Judge refused to let 
a doctor remain free pending appeal on his conviction of 
possessing child pornography stating that the physician had 
``manipulated the system,'' long enough in an attempt to delay 
his punishment.\10\ The appeal came after the Free Speech 
Coalition decision and challenged the conviction because the 
government was not required to prove that the children depicted 
in his pornographic images obtained online were real.\11\ In 
the District Court order, the Judge did acknowledge that the 
appeal raised a ``substantial question'' that emerged from the 
Ashcroft v. Free Speech Coalition decision and ``that presents 
a quandary for prosecutors and courts.'' \12\ The article noted 
that similar challenges are pending across the Nation.\13\
---------------------------------------------------------------------------
    \10\ Maro Robbins, Doc must serve in porn case, San Antonio 
Express-News, June 2002.
    \11\ Id.
    \12\ Id.
    \13\ Id.
---------------------------------------------------------------------------
    The quandary is that, while there is no substantial 
evidence that any of the child pornography images being 
trafficked today were made in any other way than by the abuse 
of real children, technological advances are leading many 
criminal defendants to suggest otherwise. These defendants are 
claiming that the images they possess are not those of real 
children, insisting that the government prove beyond a 
reasonable doubt that the images are not computer-generated. 
This is not a new defense, but without a narrowly drafted 
statute intended to prohibit the use of virtual child 
pornography that an ordinary person viewing the depiction could 
not distinguish from a depiction of a real child, it may be 
impossible for the government to prosecute child pornography 
cases involving computer images.
    The possibility that technology exists to produce 
depictions of virtual children identical to depictions of real 
children not only threatens the prosecution of current and 
future cases, but that of past cases. Compounding the problem 
that such technology exists is the fact that a computer image 
seized from a child pornographer is rarely a first-generation 
product. These pictures are e-mailed over and over again or 
scanned in from photographs of real children being abused and 
exploited. The transmission of images over an e-mail system can 
alter the image and make it impossible even for an expert to 
know whether or not 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.
    To prove a child is real will require identifying the 
actual child. This is usually impossible. Many of the 
victimized children are from third world countries.
    Moreover, the existence of computer generated images of 
child pornography that are indistinguishable from depictions of 
real children will bolster the child pornography market and 
those who abuse children to produce such pictures. The majority 
opinion in Free Speech Coalition stated, in dicta, that ``if 
virtual images were identical to illegal child pornography, the 
illegal images would be driven from the market by the 
indistinguishable substitutes.'' \14\ Contrary to that belief, 
the President and CEO of NCMEC ``believe[s] that the Court's 
decision will result in the proliferation of child pornography 
in America, unlike anything we have seen in more than twenty 
years.'' \15\ He concluded that ``as a result of the Court's 
decision, thousands of children will be sexually victimized, 
most of whom will not report the offense.'' \16\
---------------------------------------------------------------------------
    \14\ 122 S.Ct. at 1404.
    \15\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief 
Executive Officer, National Center for Missing and Exploited Children).
    \16\ Id.
---------------------------------------------------------------------------
    The Court stated that ``[f]ew pornographers would risk 
prosecution by abusing real children if fictional, computerized 
images would suffice.'' \17\ This conclusion is simply wrong. 
The individuals who produce, trade, and exchange child 
pornography are rarely profit motivated. Pictures of real 
children being abused are sold, but they are also traded and 
displayed--they are trophies and signs of validation for 
deviant behavior. While the Supreme Court has certainly opened 
the door for the adult entertainment industry to enter the 
child pornography market, legalizing virtual child pornography 
will not reduce the market for real children.
---------------------------------------------------------------------------
    \17\ Free Speech Coalition, 122 S.Ct. 1389, 1404 (2002).
---------------------------------------------------------------------------
    Rather, the result will be a market that contains both real 
and virtual children (as it does now). The only difference is 
that now child molesters will be able to hide their abuse with 
altered or merely e-mailed photographs of their victims and the 
market will no longer be underground but will return to the 
public ``adult book stores.''
    Child pornography--virtual or otherwise--is detrimental to 
the nation's most precious and vulnerable asset--our children. 
Regardless of the method of its production, child pornography 
is used to promote and incite deviant and dangerous behavior in 
our society. As the President and CEO of the NCMEC testified 
``there is compelling evidence that visual depictions of 
sexually explicit conduct involving children cause real 
physical, emotional and psychological damage not only to 
depicted children but also to non-depicted children. It is just 
as insidious, whether it is a photographic record of a child's 
actual victimization, or a photographic depiction used as a 
tool or device to subsequently victimize other children.'' \18\
---------------------------------------------------------------------------
    \18\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong.(2002) (prepared statement of Ernest E. Allen, President & Chief 
Executive Officer, National Center for Missing and Exploited Children)
---------------------------------------------------------------------------
    Sex predators produce, trade, and use child pornography for 
several insidious purposes. Pedophiles not only like to create 
a permanent record for arousal and gratification, but also like 
to trade these pictures with other pedophiles to validate their 
actions. Additionally, sex offenders use child pornography to 
lower children's inhibitions to make them believe that such 
behavior is acceptable and normal. There are also those who 
sell it for profit.\19\
---------------------------------------------------------------------------
    \19\ Child Pornography: The Criminal-Justice-System Response, the 
American Bar Association Center for Children and the Law for the 
National Center for Missing & Exploited Children (March 2001) p.6.
---------------------------------------------------------------------------
    Prior to 1982, child pornography lined the shelves of many 
``adult'' entertainment stores. This changed after the 1982 
Supreme Court's New York v. Ferber decision that found child 
pornography was not entitled to First Amendment protection.\20\ 
In Ferber, the Court found that: ``[i]t is evident beyond the 
need for elaboration that a State's interest in `safeguarding 
the physical and psychological well-being of a minor' is 
`compelling.' '' \21\ Further the Court found that: ``[t]he 
distribution of photographs and films depicting sexual activity 
by juveniles is intrinsically related to the sexual abuse of 
children in at least two ways. First, the material produced are 
a permanent record of the children's participation and the harm 
to the child is exacerbated by their circulation. Second, the 
distribution network for child pornography must be closed if 
the production of material which requires the sexual 
exploitation of children is to be effectively controlled.'' 
\22\
---------------------------------------------------------------------------
    \20\ 458 U.S. at 764.
    \21\ Id. at 756-757(citing Globe Newspaper Co. v. Superior Court, 
457 U.S. 596, 607 (1982)).
    \22\ Id. at 759.
---------------------------------------------------------------------------
    While child pornography disappeared from bookstores 
following Ferber, it did not disappear from existence. \23\ The 
child pornography market merely went underground, but this 
underground market was spurred by the advent of the 
Internet.\24\ Nevertheless, law enforcement had begun to make 
enormous strides in the enforcement and prosecution of child 
pornography crimes.\25\
---------------------------------------------------------------------------
    \23\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief 
Executive Officer, National Center for Missing and Exploited Children)
    \24\ At a May 24, 2001 before the Subcommittee, the Deputy Attorney 
General for Criminal Justice of the State of Texas testimony 
(Unfortunately, one of the biggest problems is that computer criminals 
are targeting the most vulnerable of our society--children. While the 
Internet has revolutionized the ways in which the world communicates, 
there is an equally awesome dark side. According to the Federal Bureau 
of Investigation, child pornography was virtually extinct prior to the 
advent of the Internet. However, with increased Internet usage in 
America and the world there has been an alarming increase in child 
pornography cases. According to the U.S. Postal Service, 40 percent of 
the offenders who have been arrested with child pornography downloaded 
from the Internet have sexually assaulted minors.)
    \25\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong.______-______ (2002) (prepared statement of Ernest E. Allen, 
President & Chief Executive Officer, National Center for Missing and 
Exploited Children that, ``The FBI created its Innocent Images Task 
Force. The Customs Service expanded its activities through its 
CyberSmuggling Center. The Postal Inspection Service continued and 
enhanced its strong attack on child pornography. The Congress funded 
thirty Internet Crimes Against Children Task Forces at the state and 
local levels across the country. Child pornography prosecutions have 
increased an average of 10% per year in every year since 1995.'')
---------------------------------------------------------------------------
    Again, the Government has a compelling interest in 
protecting children from those who sexually exploit them, 
including both child molesters and child pornographers. The 
Supreme Court in New York v. Ferber, concluded that ``[t]he 
prevention of sexual exploitation and abuse of children 
constitutes a government objective of surpassing importance.'' 
\26\ In Osborne v. Ohio, the Court recognized that this 
compelling state interest extends to stamping out the vice of 
child pornography ``at all levels in the distribution chain.'' 
\27\
---------------------------------------------------------------------------
    \26\ 458 U.S. at 757.
    \27\ 495 U.S. 103, 110 (1990)
---------------------------------------------------------------------------
    It follows that the Government has a compelling interest to 
ensure that the criminal prohibitions against child pornography 
remain enforceable and effective. As the Court stated in 
Ferber, ``[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.'' 
\28\
---------------------------------------------------------------------------
    \28\ 458 U.S. at 760.
---------------------------------------------------------------------------
    It became apparent in the 1990's that advances in technoloy 
threatened the Government's compelling state interest in 
protecting real children through the effective prosecution of 
the child pornography laws that cover the visual depictions of 
real children. In 1996, the Congress attempted to address this 
concern with the Child Pornography Prevention Act.\29\ The 1996 
language included a prohibition of any virtual depictions as 
well as pictures of youthful-looking adults. The Supreme Court 
found the 1996 statutory language overbroad, and therefore, 
unconstitutional.
---------------------------------------------------------------------------
    \29\ Pub. L. No. 104-208, Div. A, Title I, Sec. 101(a), 110 Stat. 
3009-28 (codified as amendment at 18 U.S.C. 2252A(1996)).
---------------------------------------------------------------------------
    Unless we amend the statute, this Country faces a 
proliferation of child pornography. At risk are the 
prosecutions against child pornographers who are frequently 
child molesters.\30\
---------------------------------------------------------------------------
    \30\ Andres E. Hernandex, Psy.D. Federal Bureau of Prisons, Self-
Reported Contact Sexual Offenses by Participants in the Federal Bureau 
of Prisons' Sex Offender Treatment Program: Implications for Internet 
Sex Offenders. (In November 2000, the Federal Bureau of Prisons 
released a study on Internet sex offenders who used the Internet to 
download, trade, and distribute child pornography as well as offenders 
who lure children for sexual abuse and exploitation. The study examined 
two groups: those convicted of sexual contact crimes against children 
and those convicted of nonsexual contact crimes against children. The 
nonsexual contact crimes consisted of those convicted under the child 
pornography laws and those convicted of traveling to meet a child with 
the intent to sexually exploit that child. Of the 90 subjects of the 
study 66 were convicted of crimes that did not include sexual contact. 
Out of the 66 who were convicted of non-contact crimes, 62 were still 
related to the sexual exploitation of children through child 
pornography or traveling to meet a child with the intent to sexually 
abuse a child. Of the 62, 49 were convicted of child pornography 
(trading or possessing child pornography) and 13 were convicted for 
traveling to meet a child. None of those convicted were producers of 
pornography. Of the 62 convictions for non-contact crimes against 
children, 76 percent of offenders admitted to sexually abusing or 
exploiting a child. These offenders admitted to an average of 30.5 
victims per offender.)
---------------------------------------------------------------------------
    In any criminal case, the prosecution must prove beyond a 
reasonable doubt that a crime was committed. A prosecutor would 
face an impossible burden if a distinction must be proved 
between virtual child pornography, which may include parts of 
real children or be completely generated by a computer but 
indistinguishable from a real child, and child pornography that 
depicts an actual child or part of an actual child when the 
child is still identifiable.
    The section-by-section analysis of this report describes in 
more detail how this legislation addresses the Supreme Court's 
concerns. Briefly, however, this legislation narrows the 
definition in significant ways and strengthens the affirmative 
defense. The Court gave the Congress an opportunity to 
addresses these concerns, and the Congress has an obligation to 
do so.

                                Hearings

    The Committee's Subcommittee on Crime, Terrorism, and 
Homeland Security held 2 days of hearings on H.R. 4623. 
Testimony was received on May 1, 2002, from three witnesses: 
(1) Michael J. Heimbach, Unit Chief, Crimes Against Children 
Unit, Federal Bureau of Investigation; (2) Ernie Allen, 
President and Chief Executive Officer for the National Center 
for Missing & Exploited Children; and (3) Lt. Bill Walsh, with 
the Dallas Internet Crimes Against Children Taskforce . 
Testimony was received on May 9, 2002, from one witness: Daniel 
Collins, Associate Deputy Attorney General, Office of the 
Attorney General, U.S. Department of Justice.

                        Committee Consideration

    On May 9, 2002, the Subcommittee on Crime, Terrorism, and 
Homeland Security met in open session and ordered favorably 
reported the bill H.R. 4623, as amended, a voice vote, a quorum 
being present. On May 15, 2002, the Committee met in open 
session and ordered favorably reported the bill H.R. 4623 with 
amendment by a recorded vote of 22 to 3, a quorum being 
present.

                         Vote of the Committee

    1. Final Passage. The motion to report favorably the bill 
H.R. 4623 was adopted. The motion was agreed to by rollcall 
vote of 22 to 3.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Barr........................................................
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................
Mr. Graham......................................................              X
Mr. Bachus......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. Conyers.....................................................
Mr. Frank.......................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             22               3
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 4623 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 4623, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 24, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4623, the Child 
Obscenity and Pornography Prevention Act of 2002.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for Federal costs), who can be reached at 226-2860, 
and Jean Talarico (for the private-sector impact), who can be 
reached at 226-2940.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 4623--Child Obscenity and Pornography Prevention Act of 2002.
    H.R. 4623 would establish new Federal crimes and increase 
penalties for existing crimes relating to child pornography. 
CBO estimates that implementing the bill would not result in 
any significant cost to the Federal Government. Because 
enactment of H.R. 4623 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill; 
however, CBO estimates that any impact on direct spending and 
receipts would not be significant.
    Because H.R. 4623 would establish new Federal crimes, the 
Government would be able to pursue cases that it otherwise 
would not be able to prosecute. CBO estimates that any increase 
in costs for law enforcement, court proceedings, or prison 
operations would not be significant because of the small number 
of additional cases likely to be affected. Any such costs would 
be subject to the availability of appropriated funds.
    Since those prosecuted and convicted under H.R. 4623 could 
be subject to criminal fines, the Federal Government might 
collect additional fines if the legislation is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and later spent. CBO expects that any 
additional receipts and direct spending would be negligible 
because of the small number of cases affected.
    H.R. 4623 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on State, local, or tribal governments. The bill would 
impose a private-sector mandate, as defined in UMRA, by 
expanding reporting requirements on electronic communication 
service providers to include additional activities related to 
child pornography. Since those service providers are currently 
required to report many such activities violating the law, CBO 
estimates that the costs to report the additional activities 
would not exceed the annual threshold specified in UMRA ($115 
million in 2002, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for Federal costs), who can be reached at 226-2860, and Jean 
Talarico (for the private-sector impact), who can be reached at 
226-2940. This estimate was approved by Peter H. Fontaine, 
Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8 of the Constitution.

               Section-by-Section Analysis and Discussion

                          SEC. 1. SHORT TITLE.

    The short title is the ``Child Obscenity and Pornography 
Prevention Act of 2002.''

                            SEC. 2. FINDINGS

    Congress finds the following:

         (1) Obscenity and chid pornography are not entitled 
        to protection under the First Amendment, and thus may 
        be prohibited.

         (2) The Government has a compelling interest in 
        protecting children from those who sexually exploit 
        them, including both child molesters and child 
        pornographers.

         (3) The Government thus has a compelling interest in 
        ensuring that the criminal prohibitions against child 
        pornography remain enforceable and effective.

         (4) In 1982, when the Supreme Court decided New York 
        v. Ferber, 458 U.S. 747, 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 Congress demonstrates that 
        today technology 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 of 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 Night 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 is 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 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 by the First Amendment 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. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.

    Sections Sec. Sec. 2251-2260 of title 18, United States 
Code, contains prohibitions against sexual exploitation of 
children including child pornography. Section 2251 makes it a 
Federal crime to use a minor to make child pornography if the 
pornography is connected to interstate or foreign commerce.
    Section 2252 makes it a crime to knowingly (1) transport or 
ship child pornography; (2) receive or distribute child 
pornography; or (3) reproduce child pornography for 
distribution in interstate or foreign commerce by any means 
including by computer or through the mail. Additionally, 
Sec. 2252 makes it a crime to possess child pornography.
    In 1996, Congress amended the Federal prohibitions against 
sexual exploitation of children to address technological 
advances.\31\ These advances have assisted child pornographers 
in every aspect of the crime--from production to transmission 
to molestation. The Child Pornography Prevention Act of 
1996,\32\ created new section 2252A of title 18. The 
prohibitions in Sec. 2252A are basically the same as Sec. 2252, 
but also include the use of a computer in the prohibitions 
against the production, distribution, and possession of ``child 
pornography.'' The Act also added a new definition of what 
constitutes child pornography under Sec. 2256(8)(A)-(D).
---------------------------------------------------------------------------
    \31\ S. Rep. No. 104-358, at 7 (1996).
    \32\ Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, 
Div. A, Title I, Sec. 101(a), 110 Stat. 3009-28. (codified as amendment 
at 18 U.S.C. 2252A(1996)).
---------------------------------------------------------------------------
    On April 16, 2002, Supreme Court ruled that sections 
2256(8)(B) and (D) were overbroad, and therefore 
unconstitutional.\33\ This section narrows the definition for 
section 2256(8)(B) in three significant ways under sections 
3(a)-(c) of the bill. Section 2256(8)(D) is addressed in 
section 4 of the bill.
---------------------------------------------------------------------------
    \33\ Free Speech Coalition, 122 S.Ct. 1389.
---------------------------------------------------------------------------
Sec. 3(a)--tightening the definition of child pornography under 
        Sec. 2256(8)(B)
    Section 3(a) of the bill amends 18 U.S.C. Sec. 2256(8)(B), 
which currently defines ``child pornography'' to include ``any 
visual depiction, including any photograph, film, video, 
picture, or computer or computer-generated image or picture'' 
that ``is, or appears to be'' of a minor engaging in sexually 
explicit conduct.
    The Supreme Court held that the definition under 
Sec. 2256(8)(B) was overbroad and unconstitutional because the 
statute extended the definition of child pornography to include 
visual depictions that were computer-generated and were of 
adults who looked like minors.\34\ Because the statute covered 
adults and computer-generated images as well as real children, 
the Court found the statute went beyond Ferber. \35\ The Court 
found in Ferber that child pornography was not entitled to 
First Amendment protection because of the State's interest in 
protecting children.\36\ The Court reasoned that ``the use of 
[real] children as subjects of pornographic materials is 
harmful to the physiological, emotional, and mental health of 
the child.'' \37\
---------------------------------------------------------------------------
    \34\ Free Speech Coalition, 122 S.Ct. 1389 (2002).
    \35\ Id.
    \36\ 458 U.S. 747 (1982).
    \37\ Id. at 758.
---------------------------------------------------------------------------
    In response to the Free Speech Coalition decision, section 
3(a) of this bill narrows the definition of child pornography 
so that ``[it] is a computer image or computer-generated image 
that is, or is indistinguishable from, that of a minor engaging 
in sexually explicit conduct.''
    This provision narrows the definition in several ways. 
First, it limits the definition to computer images or computer-
generated images. Second, it limits the definition by requiring 
the virtual images be indistinguishable from real images. 
Third, it uses the newly defined definition for ``sexually 
explicit conduct.''

 LIMITING THE DEFINITION TO COMPUTER IMAGES OR COMPUTER 
GENERATED IMAGES

    Section 3(a) of the bill narrows the definition of child 
pornography under section 2256(8)(B) to depictions that are 
``computer images'' (e.g., pictures scanned into a computer) or 
``computer-generated images'' (e.g., images created or altered 
with the use of a computer). The Supreme Court was concerned in 
Free Speech Coalition that the breadth of the language would 
prohibit legitimate movies like ``Traffic'' or plays like 
``Romeo and Juliet.'' Limiting the definition to computer 
images or computer-generated images will help to exclude 
ordinary motion pictures from the coverage of ``virtual child 
pornography.''

 LIMITING THE DEFINITION BY REQUIRING THE VIRTUAL 
IMAGES TO BE INDISTINGUISHABLE FROM REAL IMAGES.

    This section further narrows the definition by replacing 
the phrase ``appears to be'' with the phrase ``is 
indistinguishable from.'' That new phrase addresses the Court's 
concern that cartoon-sketches would be banned under the 
statute. ``The substitution of `is indistinguishable from' in 
lieu of `appears to be' more precisely reflects what Congress 
intended to cover in the first instance, and eliminates an 
ambiguity that infected the current version of the definition 
and that enabled those challenging the statue to argue that it 
`capture[d] even cartoon-sketches and statues of children that 
were sexually suggestive.' '' \38\
---------------------------------------------------------------------------
    \38\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 3 (May 2002). citing Free 
Speech Coalition 122 S. Ct. at 1409 (O'Connor, J., concurring in part 
and dissenting in part).
---------------------------------------------------------------------------
    The term ``indistinguishable'' is defined in subsection 
4(c) of the bill and provides that ``indistinguishable'' means 
``virtually indistinguishable, in that the depiction is such 
that an ordinary person viewing it would conclude the depiction 
is of a minor engaged in sexually explicit conduct.'' To clear 
up any ambiguity the bill further limits the definition of 
``indistinguishable'' by clarifying that this definition does 
not apply to depictions that are drawings, cartoons, 
sculptures, or paintings depicting minors or adults.

 LIMITING THE DEFINITION OF CHILD PORNOGRAPHY BY 
NARROWING THE DEFINITION OF ``SEXUALLY EXPLICIT CONDUCT''

    The bill further narrows the definition of child 
pornography through an amendment to 18 U.S.C. Sec. 2256(2) that 
requires a simulated image to be lascivious to constitute child 
pornography under the new definition in 2256(8)(B). Thus, child 
pornography that simulates sexually explicit conduct must be 
lascivious as well as meet the other requirement of the 
definition.
Sec. 3(b)--tightening the definition of ``sexually explicit conduct'' 
        as it applies to virtual child pornography.
    As mentioned above, subsection (b) attempts to further 
tighten the definition of child pornography under 
Sec. 2256(8)(B) by amending Sec. 2256(2) that defines 
``sexually explicit conduct.'' The amendment adds a new section 
creating a separate definition of ``sexually explicit conduct'' 
for child pornography under Sec. 2256(8)(B).
    That new section of the definition covers both real and 
simulated conduct as does the old criminal code provision. The 
difference, however, is that the new section requires 
``simulated'' conduct to be lascivious.
Sec. 3(c)--strengthening the affirmative defense under 18 U.S.C. 
        Sec. 2252A
    The Supreme Court did not rule on the affirmative defense 
in Sec. 2252A(c), which provides a defense for violations of 
subsections 2252A(a)(1)-(4) where the person producing the 
material used adults and did not distribute the material so as 
to convey the impression that the material was child 
pornography.
    Subsection 3(c) amends the existing statutory provision in 
the code to conform with the Supreme Court's holding by 
replacing 18 U.S.C. Sec. 2252A(c), the affirmative defense for 
violations of Sec. 2252A, with a statement that it shall be an 
affirmative defense to a charge of violating this section that 
the alleged offense did not involve the use of a minor engaging 
in sexually explicit conduct or attempt to or conspire to 
commit an offense involving such child pornography. Unlike the 
current law, this defense applies to possession as well as the 
other crimes under section 2252A.
    The affirmative defense would only apply when the 
production of the visual depiction did not involve a minor. 
Additionally, while this defense applies to the child 
pornography section, it would not apply to the old or new 
obscenity provisions. Accordingly, the defense only applies 
when no real child was used and when the materials are not 
obscene. Producers, distributors, and possessors may still be 
charged and convicted with obscenity charges under Chapter 71 
of title 18, United States Code, including the new violations 
under sections1466A and 1466B.
    The committee finds that section 3(c) strengthens the 
affirmative defense in existing law. If the existing 
affirmative defense had been more complete, the Court left open 
the possibility that the 1996 statute might have survived the 
constitutional challenge, even though it was overbroad. 
Specifically, the Court stated ``We need not decide, however, 
whether the Government could impose this burden [of an 
affirmative defense] on a speaker. Even if an affirmative 
defense can save a statute from First Amendment challenge, here 
the defense is incomplete and insufficient, even on its own 
terms.'' \39\ Justice Thomas, in his concurring opinion, stated 
that the ``Court does leave open the possibility that a more 
complete affirmative defense could save a statute's 
constitutionality.'' \40\ The Committee believes that such an 
opening by the Court was an implicit acceptance that some 
regulation of virtual child pornography might be 
constitutional.
---------------------------------------------------------------------------
    \39\ Free Speech Coalition, 122 S.Ct. at 1405.
    \40\ Free Speech Coalition, 122 S.Ct. at 1407. (Thomas, J., 
concurring).
---------------------------------------------------------------------------

    SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.

    This section amends the law to address the Court's 
conclusion that 18 U.S.C. Sec. 2256(8)(D) is overbroad and 
unconstitutional. That section defined ``child pornography'' to 
include ``any visual depiction, including any photography, 
film, video, picture, or computer or computer-generated image 
or picture'' that ``is advertised, promoted, presented, 
described, or distributed in such a manner that conveys the 
impression that the material is or contains a visual depiction 
of a minor engaging in sexually explicit conduct.''
    The Court found that this part of the definition of child 
pornography was overbroad because it punishes even those 
possessors who took no part in pandering and may not even have 
been aware that it was once so pandered as child pornography.
Sec. 4(a)--eliminating subparagraph (D) in Sec. 2256(8) for the 
        definition of child pornography.
    Section 4(a) of the bill deletes Sec. 2256(8)(D) in the 
definition of ``child pornography,'' which the Supreme Court 
found unconstitutional.\41\ The Court found this prohibition as 
overbroad because it punishes even those possessors who took no 
part in pandering. ``Once a work has been described as child 
pornography, the taint remains on the speech in the hands of 
subsequent possessors, making possession unlawful even though 
the content otherwise would not be objectionable.'' \42\
---------------------------------------------------------------------------
    \41\ Free Speech Coalition, 122 S.Ct. 1397.
    \42\ Id. at 1398.
---------------------------------------------------------------------------
Sec. 4(b)--creating two new offenses for pandering related to child 
        pornography.
    Section 4(b) adds a new section 2252B to title 18. This new 
section of title 18 provides two new offenses related to child 
pornography. Section 2252B(a) makes it an offense for a person 
who offers, agrees, attempts, or conspires to provide or sell a 
visual depiction to another, and who in connection therewith 
knowingly advertises, promotes, presents, or describes the 
visual depiction with the intent to cause any persons to 
believe that the material is a visual depiction of a minor 
engaging in sexually explicit conduct. This section makes it 
illegal for anyone to pander material they are offering as 
child pornography.
    Section 2252B(b) makes it an offense for a person who 
offers, agrees, attempts, or conspires to receive or purchase 
from another person a visual depiction that he believes to be, 
or to contain, a visual depiction of a minor engaging in 
sexually explicit conduct.
    Section 2252B(c) provides that the offense does not require 
the element of actually providing, selling, receiving, 
purchasing, possessing, or producing any visual depiction. 
Section 2252(d) provides the circumstances for which Federal 
jurisdiction would apply.
    The Committee agrees with the Department of Justice's 
position that this new section should resolve the 
constitutional problems with the definition under section 
2256(8)(D) as this section deals with inchoate offenses (i.e., 
attempt, conspiracy, solicitation) with respect to conduct that 
is aimed at other unlawful conduct that is not constitutionally 
protected and with the prohibition of advertising of an 
unlawful transaction. An analogy the Department of Justice 
presented is the example of criminalizing an individual 
offering to provide or sell illegal drugs, even where the 
offeror does not actually have such drugs in hand.\43\
---------------------------------------------------------------------------
    \43\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 4 (May 2002) (citing Cf. 
Ginzburg v. United States, 383 U.S. 463, 474-76 (1966) (materials can 
be characterized as obscene based in part on the manner in which they 
are marketed).
---------------------------------------------------------------------------

       SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.

    In addition to responding directly to the Court's 
constitutional concerns, this bill adds new obscenity offenses 
by adding two new sections in Chapter 71 of title 18. Section 5 
of the bill would add new Sec. 1466A entitled Obscene visual 
depictions of young children and new Sec. 1466B entitled 
Obscene visual representations of pre-pubescent sexual abuse. 
The Court found that the definition of child pornography under 
the Federal statute went beyond speech that was obscene.
    This more narrowly focused section ``takes into account the 
fact that the Free Speech Coalition Court relied entirely on 
post-pubescent materials in finding that the prior law was 
substantially overbroad.'' \44\ ``Moreover, the Court 
specifically noted in its opinion that the age of the child 
depicted was an important consideration in determining whether 
a particular depiction was constitutionally unprotected 
obscenity: `Pictures of young children engaged in certain acts 
might be obscene where similar depictions of adults, or perhaps 
even older adolescents, would not' '' \45\
---------------------------------------------------------------------------
    \44\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and 
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism 
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. 8 (statement of Dan Collins, Associate Deputy Attorney General, 
Department of Justice).
    \45\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and 
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism 
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. 7-8 (statement of Dan Collins, Associate Deputy Attorney General, 
Department of Justice) (quoting Ashcroft v. Free Speech Coalition, 122 
S.Ct. 1389, 1396 (2002).
---------------------------------------------------------------------------
    Section 5 creates a narrowly focused prohibition that 
responds to the Court's dicta. Obscene materials are not 
protected by the Constitution and may be banned. An official of 
the Department of Justice testified before the Subcommittee on 
May 9, 2002, that:

        Congress may reasonably conclude that the very narrow 
        class of materials covered by the new section [5] are 
        the sort that would invariably satisfy the 
        constitutional standards for obscenity set out in 
        Miller v. California, 413 U.S. 15 (1973), and that such 
        materials therefore may be fully proscribed because 
        they are constitutionally unprotected obscenity. The 
        narrow class of images reached by section [5] are 
        precisely the sort that appeal to the worst form of 
        prurient interest, that are patently offensive in light 
        of any applicable community standards, and that lack 
        serious literary, artistic, political, or scientific 
        value in virtually any context.\46\
---------------------------------------------------------------------------
    \46\ Legislative Hearing on H.R. 4623, the ``Child Obscenity and 
Pornography Prevention Act of 2002,'' and H.R. 4477, the ``Sex Tourism 
Prohibition Improvement Act of 2002,'' Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. 8 (statement of Dan Collins, Associate Deputy Attorney General, 
Department of Justice)

    An offense under these new sections are subject to a higher 
penalty than the existing penalties under Federal obscenity 
prohibitions, as the offense deals directly with the child 
pornography market.
    Section 1466A(a) would prohibit a person from producing, 
distributing, receiving, or possessing with the intent to 
distribute, a visual depiction that is, or is nearly 
indistinguishable, from a pre-pubescent child as a violation of 
Federal obscenity law. Pre-pubescent child is defined in new 
Sec. 1466A(c).
    Because section 1466A(a) covers depictions of pre-pubescent 
children, the prohibition is narrower than the concept of 
``child pornography'' under chapter 110 of title 18. Child 
pornography covers visual depictions of persons below the age 
of 18.
    Section 1466A(b) prohibits the possession of obscene pre-
pubescent visual depictions. Although this is an obscenity 
provision that prohibits possession, the Department of 
Justice's position is that this provision is constitutionally 
sound:

        In 1969, the Supreme Court held in Stanley v. Georgia, 
        394 U.S. 557 (1969), that a state could not 
        constitutionally criminalize the simple possession of 
        obscenity in the privacy of a person's residence. In 
        Osborne v. Ohio, 495 U.S. 103 (1990), however, the 
        Court held that Stanley does not apply to the 
        possession of child pornography involving actual 
        children. Id. at 108-11. Moreover, the Court has 
        explicitly ``rejected'' the contention ``that Stanley 
        has firmly established the right to possess obscene 
        material in the privacy of the home and that this 
        creates a correlative right to receive it, transport 
        it, or distribute it.'' United States v. Orito, 413 
        U.S. 139, 141 (1973). See also Smith v. United States, 
        431 U.S. 291, 307 (1977) (``The [Orito Court] held that 
        Stanley did not create a right to receive, transport, 
        or distribute obscene material, even though it had 
        established the right to possess the material in the 
        privacy of the home.'' \47\
---------------------------------------------------------------------------
    \47\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 5 (May 2002) (emphasis 
added).

    The Department of Justice's position points to the fact 
that several ``Courts of appeals have extended the rationale of 
Orito \48\ to, in effect, cover such `home receipt' situations 
under several [F]ederal obscenity and child pornography laws.'' 
\49\ The Committee agrees with the Department of Justice.
---------------------------------------------------------------------------
    \48\ United States v. Orito, 413 U.S. 139, 141 (1973).
    \49\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 5-6 (May 2002) (citing See, 
e.g., United States v. Hurt, 795 F.2d 765 (9th Cir. 1986), cert. 
denied, 484 U.S. 816 (1987); United States v. Kuennen, 901 F.2d 103 
(8th Cir.), cert. denied, 498 U.S. 958 (1990); United States v. Hale, 
784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829 (1986); see also, 
e.g., United States v. Andersson, 803 F.2d 903, 906-07 (7th Cir. 1986), 
cert. denied, 479 U.S. 1069 (1987); United States v. Mercado, 828 F.2d 
20, 1987 WL 38588, at *2 (6th Cir. 1987), cert. denied, 485 U.S. 907 
(1988); United States v. Nelson, 847 F.2d 285, 288 (6th Cir. 1988); 
United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988), cert. 
denied, 490 U.S. 1005 (1989); United States v. Fordyce, 878 F.2d 1431, 
1989 WL 74900, at *1 [sic](4th Cir. 1989) (per curiam)).
---------------------------------------------------------------------------
    The Department concluded that ``the new 1466A(b) will not 
depart from current constitutional doctrine in any material 
respect.'' \50\ While child pornography does not have to be 
obscene,\51\ any obscene picture of real children engaging in 
sexually explicit conduct is by its very definition child 
pornography. There is no right to possess child pornography in 
one's home; \52\ thus, the ban on possession of visual 
depictions of pre-pubescent children engaging in sexually 
explicit conduct is constitutional.
---------------------------------------------------------------------------
    \50\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 6 (May 2002).
    \51\ Ferber, 458 U.S. at 764 (1982) (``The Miller formulation is 
adjusted in the following respects: A trier of fact need not find that 
the material appeals to the prurient interest of the average person; it 
is not required that sexual conduct be portrayed in a patently 
offensive manner; and the material need not be considered as a 
whole.'')
    \52\ Osborne v. Ohio, 495 U.S. 103 (1990).
---------------------------------------------------------------------------
    The extension of the ban on possession of obscene visual 
depictions that are indistinguishable from that of a real pre-
pubescent child would be, in all likelihood, computer-generated 
images. If it is a computer-generated image, the possessor 
either produced it in violation of 1466A(a) or received it in 
violation of 1466A(a). As the Department of Justice indicated:

        the possession prohibition in section 1466A(b) would 
        not be premised ``on the desirability of controlling a 
        person's private thoughts.'' Stanley, 394 U.S. at 566. 
        Instead, it would be premised on the government's 
        substantial and legitimate interest in preventing 
        obscenity from ``entering the stream of commerce'' in 
        the first instance, see Orito, 413 U.S. at 143, and on 
        the reasonable assumption that a defendant's possession 
        of computer-generated obscenity is fairly dispositive 
        proof that the defendant caused, induced, or effected, 
        the interstate transmission or commerce of the obscene 
        materials (e.g., by ordering or requesting their 
        transmission).\53\
---------------------------------------------------------------------------
    \53\ Department of Justice Transmittal letter with draft 
legislation to the Speaker of the House at 6 (May 2002).

    Section 1466A(c) provides the definitions for ``visual 
depiction,'' ``pre-pubescent child,'' and ``sexual explicit 
conduct.'' Section 1466A(d) provides the circumstances for 
which Federal jurisdiction would apply.
    Section 1466A(e) incorporates an affirmative defense 
similar to the existing defense in 18 U.S.C. Sec. 2252A(d) 
which applies to situations where someone comes into possession 
of one or two items of child pornography (e.g., through spammed 
material) and promptly destroys the material or notifies law 
enforcement.
    Section 5(a) also includes a new obscenity provision, 1466B 
that applies to obscene visual representations of pre-pubescent 
sexual abuse. This section applies to depictions of virtual 
children that are distinguishable from real children. This new 
section was added during Full Committee consideration in 
response to what appears to be a newly posted web site that 
displays pictures of children being raped and sodomized by 
adults, where the pictures are clearly virtual, but obscene. 
This provision would enhance the penalties for such obscenity.
    The Committee believes that this web site was clearly 
created in response to the Supreme Court's Free Speech 
Coalition decision. The site proudly states that it is there 
for ``whetting the appetites of pedophiles everywhere.'' The 
website goes on to state that:
    On April 16, 2002, in a 6-3 decision (Ashcroft v. Free 
Speech Coalition), the Supreme Court struck down the two 
sections of the 1996 Child Pornography Prevention Act that 
forbid virtual child pornography, stating that these sections 
were overbroad and unconstitutional. Well, here we go. . . .

        Virtual Child Porn Headquarters:

        The first and only source for virtual child porn Here 
        at Virtual Child Porn Headquarters, we strive to be a 
        source you can trust for the best in virtual child 
        pornography. With the law by our side, we are embarking 
        on a marvelous journey, exploring the very frontiers of 
        your rights as a[sic] American. And as you stand 
        proudly next to us, fellow citizen, you can recite our 
        motto to boost your morale:

        Give me virtual child pornography, or give me death!

    Section 5(b) of this bill directs that the Sentencing 
Commission may establish guidelines specifically governing 
offenses under 18 U.S.C. Sec. Sec. 1466A and 1466B.

SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST 
                                 MINORS

    Section 6 of the bill would add new Sec. 1471 entitled 
``Use of obscene material or child pornography to facilitate 
offenses against minors.'' Section 1471 would (1) punish adults 
who provide unsuitable materials to children and (2) punish 
adults who do so to aid in the solicitation of minors for 
sexual exploitation.
    Among other things, sex offenders use visual depictions of 
children having sex with adults or performing sexual acts to 
lower the inhibitions of children to engage in sex with the 
pedophile. ``Child pornography is not used simply for the 
viewing pleasure of an individual, it is also used as a means 
to an end--that end being the victimization of children and in 
some cases the end of a child's life.'' \54\ The Supreme Court 
stated that ``[t]he government, of course, may punish adults 
who provide unsuitable materials to children.'' \55\ The Court 
mentioned that ``Osborne also noted that the State's interest 
in preventing child pornography from being used as an aid in 
the solicitation of minors.'' \56\
---------------------------------------------------------------------------
    \54\ Hearing on the April 16, 2002 Supreme Court decision in 
Ashcroft v. the Free Speech Coalition Before the House Subcomm. on 
Crime, Terrorism, and Homeland Security, Comm. on the Judiciary, 107th 
Cong. (2002) (prepared statement of Ernest E. Allen, President & Chief 
Executive Officer, National Center for Missing and Exploited Children).
    \55\ Free Speech Coalition, 122 S.Ct. at 1402 (citing Ginsberg v. 
New York, 390 U.S. 629 (1968)).
    \56\ Id. at 1401 (citing Brandenburg v. Ohio, 395 U.S. 444, 447 
91969)(per curiam).
---------------------------------------------------------------------------
    Section 1471(a)(1) would prohibit providing or showing to a 
person below the age of 16 years any obscene material or child 
pornography.
    Section 1471(a)(2) would prohibit providing a person below 
the age of 16 years any obscene materials or child pornography 
to participate in any conduct that violates chapter 109A 
(relating to sexual abuse), 110 (relating to sexual 
exploitation of children), or 117 (relating to transportation 
for illegal sexual activity and related crimes). This provision 
includes language prohibiting attempts, incitements, 
solicitations, or conspiracy to engage in any of the prohibited 
conduct.

     SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR 
                   DISTRIBUTION IN THE UNITED STATES.

    This section adds a new subparagraph to 18 U.S.C. Sec. 2251 
to prohibit a person from producing child pornography outside 
of the United States with the intent to transport it to the 
United States, or does transport it into (or otherwise makes it 
available in) the United States after that person has produced 
it outside the United States. The purpose of this section is to 
stop efforts by producers of child pornography to avoid 
criminal liability based on the fact that the child pornography 
was produced outside of the United States.\57\
---------------------------------------------------------------------------
    \57\ See, e.g., United States v. Thomas, 893 F. 2d 1066 (9th Cir. 
1990).
---------------------------------------------------------------------------

     SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS

    This section amends chapter 110, the child pornography 
chapter of title 18, which provides enhanced penalties for 
recidivists in that chapter as well as chapters 109A (related 
to sexual abuse) and 117 (related transportation for illegal 
sexual activity and related crimes) to include the offenses 
under the obscenity chapter, chapter 71. Recidivism is a huge 
problem in sexual exploitation cases. This amendment addresses 
this problem by enhancing the penalties for repeat offenders 
and ensuring adequate penalties for recidivists who commit the 
offenses under the new chapter 71 provisions in this bill.

  SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED 
                              INFORMATION.

    This section amends 42 U.S.C. Sec. 13032 which requires 
providers of electronic communications and remote computing 
services to report apparent offenses that involve child 
pornography. Under the current law, communications providers 
must report to the National Center for Missing and Exploited 
Children (NCMEC) when the provider obtains knowledge of facts 
or circumstances from which a violation of sexual exploitation 
crimes against children.\58\ A provider of electronic 
communication services may be fined for knowingly and willfully 
failing to make a report.\59\ Federal criminal law provides 
that ``[n]o provider or user of an electronic communication 
service or a remote computing service to the public shall be 
held liable on account of any action taken in good faith to 
comply with this section.'' \60\
---------------------------------------------------------------------------
    \58\ 42 U.S.C. Sec. 13032(b)(1).
    \59\ 42 U.S.C. Sec. 13032(b)(3).
    \60\ 42 U.S.C. Sec. 13032(c).
---------------------------------------------------------------------------
    After receiving these reports from communication providers, 
the NCMEC must forward them to law enforcement agencies that 
are designated by the Attorney General.
    This section of the bill strengthens this reporting system 
by adding the new offenses under Sec. Sec. 2252B, 1466A and 
1466B.
    Section 9(b) amends 18 U.S.C. Sec. 2702 to be consistent 
with 42 U.S.C. 13032(d), which provides that, in addition to 
the required information that is reported to NCMEC, the reports 
may include ``additional information.'' This should make it 
clear, for example, that an Internet service provider can 
disclose the identity of a subscriber who sent a message 
containing child pornography, in addition to the required 
reporting of the contents of such a communication. However, the 
corresponding provisions in 18 U.S.C. Sec. 2702(b)(6)(B) only 
authorize disclosure of content information required by 42 
U.S.C. Sec. 13032, and contains no language which appears to 
cover relevant non-content information, such as the identity of 
the sender of the child pornography in the example described 
above. This section corrects that inconsistency.
    At the request of the NCMEC the amendment includes a 
provision to fix a deficiency in the current law that will not 
allow the Federally funded Internet Crimes Against Children 
Task Forces to receive reports from the Cyber Tipline. These 
Task Forces are state and local police agencies that have been 
identified by the National Center as competent to investigate 
and prosecute computer facilitated crimes against children.
    Only the designated Federal agencies--FBI and Customs--are 
authorized to receive direct access to these reports. Since the 
9-11 attacks, the resources of the FBI have been stretched in a 
way which does not optimize the overall ability of law 
enforcement to effectively deal with the volume of cases being 
sent by the National Center for Missing and Exploited Children.
    The proposed language would authorize Internet Crimes 
Against Children Task Forces access to the Cyber Tipline 
Reports. The vast majority of cases in this area are being 
investigated and prosecuted by state and local law enforcement.

                         SEC 10. SEVERABILITY.

    This section provides that the provisions of the bill are 
severable, if any part is found to be unconstitutional.

    SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.

    This section is technical in nature. This section updates 
the current law regarding the use of administrative subpoenas. 
Section 3486 of title 18 covers administrative subpoenas. 
Recent changes to the law updated the transactional information 
that may be obtained under section 2703(c)(2) through an 
administrative subpoena. To update Sec. 3486, which covers 
subpoenas issued involving the sexual exploitation or abuse of 
children, this provision inserts the information specified in 
section 2703(c)(2) for the list of transactional information in 
Sec. 3486. Transactional information includes billing records 
and other similar records.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                     TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *


                            PART I--CRIMES

           *       *       *       *       *       *       *


                         CHAPTER 71--OBSCENITY

Sec.
1460.  Possession with intent to sell, and sale, of obscene matter on 
          Federal property.
     * * * * * * *
1466A.  Obscene visual depictions of young children.
1466B.  Obscene visual representations of pre-pubescent sexual abuse.
     * * * * * * *
1471.  Use of obscene material or child pornography to facilitate 
          offenses against minors.
     * * * * * * *

Sec. 1466A. Obscene visual depictions of young children

    (a) Whoever, in a circumstance described in subsection (d), 
knowingly produces, distributes, receives, or possesses with 
intent to distribute a visual depiction that is, or is 
indistinguishable from, that of a pre-pubescent child engaging 
in sexually explicit conduct, or attempts or conspires to do 
so, shall be subject to the penalties set forth in section 
2252A(b)(1), including the penalties provided for cases 
involving a prior conviction.
    (b) Whoever, in a circumstance described in subsection (d), 
knowingly possesses a visual depiction that is, or is 
indistinguishable from, that of a pre-pubescent child engaging 
in sexually explicit conduct, or attempts or conspires to do 
so, shall be subject to the penalties set forth in section 
2252A(b)(2), including the penalties provided for cases 
involving a prior conviction.
    (c) For purposes of this section--
            (1) the term ``visual depiction'' includes 
        undeveloped film and videotape, and data stored on 
        computer disk or by electronic means which is capable 
        of conversion into a visual image, and also includes 
        any photograph, film, video, picture, or computer or 
        computer-generated image or picture, whether made or 
        produced by electronic, mechanical, or other means;
            (2) the term ``pre-pubescent child'' means that (A) 
        the child, as depicted, is one whose physical 
        development indicates the child is 12 years of age or 
        younger; or (B) the child, as depicted, does not 
        exhibit significant pubescent physical or sexual 
        maturation. Factors that may be considered in 
        determining significant pubescent physical maturation 
        include body habitus and musculature, height and weight 
        proportion, degree of hair distribution over the body, 
        extremity proportion with respect to the torso, and 
        dentition. Factors that may be considered in 
        determining significant pubescent sexual maturation 
        include breast development, presence of axillary hair, 
        pubic hair distribution, and visible growth of the 
        sexual organs;
            (3) the term ``sexually explicit conduct'' has the 
        meaning set forth in section 2256(2); and
            (4) the term ``indistinguishable'' used with 
        respect to a depiction, means virtually 
        indistinguishable, in that the depiction is such that 
        an ordinary person viewing the depiction would conclude 
        that the depiction is of an actual minor engaged in 
        sexually explicit conduct. This definition does not 
        apply to depictions that are drawings, cartoons, 
        sculptures, or paintings depicting minors or adults.
    (d) The circumstance referred to in subsections (a) and (b) 
is that--
            (1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            (2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
            (3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
            (4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
            (5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.
    (e) In a case under subsection (b), it is an affirmative 
defense that the defendant--
            (1) possessed less than three such images; and
            (2) promptly and in good faith, and without 
        retaining or allowing any person, other than a law 
        enforcement agency, to access any image or copy 
        thereof--
                    (A) took reasonable steps to destroy each 
                such image; or
                    (B) reported the matter to a law 
                enforcement agency and afforded that agency 
                access to each such image.

Sec. 1466B. Obscene visual representations of pre-pubescent sexual 
                    abuse

    (a) Whoever, in a circumstance described in subsection (e), 
knowingly produces, distributes, receives, or possesses with 
intent to distribute a visual depiction of any kind, including 
a drawing, cartoon, sculpture, or painting, that--
            (1) depicts a pre-pubescent child engaging in 
        sexually explicit conduct, and
            (2) is obscene, or who attempts or conspires to do 
        so, shall be subject to the penalties set forth in 
        section 2252A(b)(1), including the penalties provided 
        for cases involving a prior conviction.
    (b) Whoever, in a circumstance described in subsection (e), 
knowingly possesses a visual depiction of any kind, including a 
drawing, cartoon, sculpture, or painting, that--
            (1) depicts a pre-pubescent child engaging in 
        sexually explicit conduct, and
            (2) is obscene,
    or who attempts or conspires to do so, shall be subject to 
the penalties set forth in section 2252A(b)(2), including the 
penalties provided for cases involving a prior conviction.
    (c) It is not a required element of any offense under this 
section that the pre-pubescent child depicted actually exist.
    (d) For purposes of this section, the terms ``visual 
depiction'' and ``pre-pubescent child'' have respectively the 
meanings given those terms in seciton 1466A, and the term 
``sexually explicit conduct'' has the meaning given that term 
in section 2256(2)(B).
    (e) The circumstance referred to in subsection (a) and (b) 
is that--
            (1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            (2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
            (3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
            (4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
            (5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.
    (f) In a case under subsection (b), it is an affirmative 
defense that the defendant--
            (1) possessed less than three such images; and
            (2) promptly and in good faith, and without 
        retaining or allowing any person, other than a law 
        enforcement agency, to access any image or copy 
        thereof--
                    (A) took reasonable steps to destroy each 
                such image; or
                    (B) reported the matter to a law 
                enforcement agency and afforded that agency 
                access to each such image.

           *       *       *       *       *       *       *


Sec. 1471. Use of obscene material or child pornography to facilitate 
                    offenses against minors

    (a) Whoever, in any circumstance described in subsection 
(c), knowingly--
            (1) provides or shows to a person below the age of 
        16 years any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child 
        engaging in sexually explicit conduct, any obscene 
        matter, or any child pornography; or
            (2) provides or shows any obscene matter or child 
        pornography, or any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child 
        engaging in sexually explicit conduct, or any other 
        material assistance to any person in connection with 
        any conduct, or any attempt, incitement, solicitation, 
        or conspiracy to engage in any conduct, that involves a 
        minor and that violates chapter 109A, 110, or 117, or 
        that would violate chapter 109A if the conduct occurred 
        in the special maritime and territorial jurisdiction of 
        the United States,
shall be subject to the penalties set forth in section 
2252A(b)(1), including the penalties provided for cases 
involving a prior conviction.
    (b) For purposes of this section--
            (1) the term ``child pornography'' has the meaning 
        set forth in section 2256(8);
            (2) the terms ``visual depiction'', ``pre-pubescent 
        child'', and ``indistinguishable'' have the meanings 
        respectively set forth for those terms in section 
        1466A(c); and
            (3) the term ``sexually explicit conduct'' has the 
        meaning set forth in section 2256(2).
    (c) The circumstance referred to in subsection (a) is 
that--
            (1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            (2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction or 
        obscene matter by the mail, or in interstate or foreign 
        commerce by any means, including by computer;
            (3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
            (4) any visual depiction or obscene matter involved 
        in the offense has been mailed, or has been shipped or 
        transported in interstate or foreign commerce by any 
        means, including by computer, or was produced using 
        materials that have been mailed, or that have been 
        shipped or transported in interstate or foreign 
        commerce by any means, including by computer; or
            (5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.

           *       *       *       *       *       *       *


      CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

Sec.
2251.  Sexual exploitation of children.
     * * * * * * *
2252B.  Pandering and solicitation.
     * * * * * * *

Sec. 2251. Sexual exploitation of children

    (a) Any person who employs, uses, persuades, induces, 
entices, or coerces any minor to engage in, or who has a minor 
assist any other person to engage in, or who transports any 
minor in interstate or foreign commerce, or in any Territory or 
Possession of the United States, with the intent that such 
minor engage in, any sexually explicit conduct for the purpose 
of producing any visual depiction of such conduct, shall be 
punished as provided under [subsection (d)] subsection (e), if 
such person knows or has reason to know that such visual 
depiction will be transported in interstate or foreign commerce 
or mailed, if that visual depiction was produced using 
materials that have been mailed, shipped, or transported in 
interstate or foreign commerce by any means, including by 
computer, or if such visual depiction has actually been 
transported in interstate or foreign commerce or mailed.
    (b) Any parent, legal guardian, or person having custody or 
control of a minor who knowingly permits such minor to engage 
in, or to assist any other person to engage in, sexually 
explicit conduct for the purpose of producing any visual 
depiction of such conduct shall be punished as provided under 
[subsection (d)] subsection (e) of this section, if such 
parent, legal guardian, or person knows or has reason to know 
that such visual depiction will be transported in interstate or 
foreign commerce or mailed, if that visual depiction was 
produced using materials that have been mailed, shipped, or 
transported in interstate or foreign commerce by any means, 
including by computer, or if such visual depiction has actually 
been transported in interstate or foreign commerce or mailed.
    (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 possessions and Territories, 
for the 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 possessions, or 
        territories, by any means including by computer or 
        mail;
            (B) the person transports such visual depiction to, 
        or otherwise makes it available within, the United 
        States, its possessions, or territories, by any means 
        including by computer or mail.
    [(c)] (d)(1) Any person who, in a circumstance described in 
paragraph (2), knowingly makes, prints, or publishes, or causes 
to be made, printed, or published, any notice or advertisement 
seeking or offering--
            (A) to receive, exchange, buy, produce, display, 
        distribute, or reproduce, any visual depiction, if the 
        production of such visual depiction involves the use of 
        a minor engaging in sexually explicit conduct and such 
        visual depiction is of such conduct; or
            (B) participation in any act of sexually explicit 
        conduct by or with any minor for the purpose of 
        producing a visual depiction of such conduct;
shall be punished as provided under [subsection (d)] subsection 
(e).
    (2) The circumstance referred to in paragraph (1) is that--
            (A) such person knows or has reason to know that 
        such notice or advertisement will be transported in 
        interstate or foreign commerce by any means including 
        by computer or mailed; or
            (B) such notice or advertisement is transported in 
        interstate or foreign commerce by any means including 
        by computer or mailed.
        [(d)] (e) Any individual who violates, or attempts or 
conspires to violate, this section shall be fined under this 
title or imprisoned not less than 10 years nor more than 20 
years, and both, but if such person has one prior conviction 
under this chapter, chapter 71, chapter 109A, or chapter 117, 
or under the laws of any State relating to the sexual 
exploitation of children, such person shall be fined under this 
title and imprisoned for not less than 15 years nor more than 
30 years, but if such person has 2 or more prior convictions 
under this chapter, chapter 71, chapter 109A, or chapter 117, 
or under the laws of any State relating to the sexual 
exploitation of children, such person shall be fined under this 
title and imprisoned not less than 30 years nor more than life. 
Any organization that violates, or attempts or conspires to 
violate, this section shall be fined under this title. Whoever, 
in the course of an offense under this section, engages in 
conduct that results in the death of a person, shall be 
punished by death or imprisoned for any term of years or for 
life.

           *       *       *       *       *       *       *


Sec. 2252. Certain activities relating to material involving the sexual 
                    exploitation of minors

    (a)  * * *
        (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), or (3) of subsection (a) shall be 
fined under this title or imprisoned not more than 15 years, or 
both, but if such person has a prior conviction under this 
chapter, chapter 71, chapter 109A, or chapter 117, or under the 
laws of any State relating to aggravated sexual abuse, sexual 
abuse, or abusive sexual conduct involving a minor or ward, or 
the production, possession, receipt, mailing, sale, 
distribution, shipment, or transportation of child pornography, 
such person shall be fined under this title and imprisoned for 
not less than 5 years nor more than 30 years.
        (2) Whoever violates, or attempts or conspires to 
violate, paragraph (4) of subsection (a) shall be fined under 
this title or imprisoned not more than 5 years, or both, but if 
such person has a prior conviction under this chapter, chapter 
71, chapter 109A, or chapter 117, or under the laws of any 
State relating to aggravated sexual abuse, sexual abuse, or 
abusive sexual conduct involving a minor or ward, or the 
production, possession, receipt, mailing, sale, distribution, 
shipment, or transportation of child pornography, such person 
shall be fined under this title and imprisoned for not less 
than 2 years nor more than 10 years.

           *       *       *       *       *       *       *


Sec. 2252A. Certain activities relating to material constituting or 
                    containing child pornography

    (a)  * * *
    (b)(1) Whoever violates, or attempts or conspires to 
violate, paragraphs (1), (2), (3), or (4) of subsection (a) 
shall be fined under this title or imprisoned not more than 15 
years, or both, but, if such person has a prior conviction 
under this chapter, chapter 71, chapter 109A, or chapter 117, 
or under the laws of any State relating to aggravated sexual 
abuse, sexual abuse, or abusive sexual conduct involving a 
minor or ward, or the production, possession, receipt, mailing, 
sale, distribution, shipment, or transportation of child 
pornography, such person shall be fined under this title and 
imprisoned for not less than 5 years nor more than 30 years.
    (2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 5 years, or both, but, if such person has a prior 
conviction under this chapter, chapter 71, chapter 109A, or 
chapter 117, or under the laws of any State relating to 
aggravated sexual abuse, sexual abuse, or abusive sexual 
conduct involving a minor or ward, or the production, 
possession, receipt, mailing, sale, distribution, shipment, or 
transportation of child pornography, such person shall be fined 
under this title and imprisoned for not less than 2 years nor 
more than 10 years.
      [(c) It shall be an affirmative defense to a charge of 
violating paragraphs (1), (2), (3), or (4) of subsection (a) 
that--
            [(1) the alleged child pornography was produced 
        using an actual person or persons engaging in sexually 
        explicit conduct;
            [(2) each such person was an adult at the time the 
        material was produced; and
            [(3) the defendant did not advertise, promote, 
        present, describe, or distribute the material in such a 
        manner as to convey the impression that it is or 
        contains a visual depiction of a minor engaging in 
        sexually explicit conduct.]
    (c)(1) Except as provided in paragraph (2), it shall be an 
affirmative defense to a charge of violating this section that 
the alleged offense did not involve the use of a minor or an 
attempt or conspiracy to commit an offense under this section 
involving such use.
    (2) A violation of, or an attempt or conspiracy to violate, 
this section which involves child pornography as defined in 
section 2256(8)(A) or (C) shall be punishable without regard to 
the affirmative defense set forth in paragraph (1).

           *       *       *       *       *       *       *


Sec. 2252B. Pandering and solicitation

    (a) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to provide or sell a 
visual depiction to another, and who in connection therewith 
knowingly advertises, promotes, presents, or describes the 
visual depiction with the intent to cause any person to believe 
that the material is, or contains, a visual depiction of a 
minor engaging in sexually explicit conduct shall be subject to 
the penalties set forth in section 2252A(b)(1), including the 
penalties provided for cases involving a prior conviction.
    (b) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to receive or purchase 
from another a visual depiction that he believes to be, or to 
contain, a visual depiction of a minor engaging in sexually 
explicit conduct shall be subject to the penalties set forth in 
section 2252A(b)(1), including the penalties provided for cases 
involving a prior conviction.
    (c) It is not a required element of any offense under this 
section that any person actually provide, sell, receive, 
purchase, possess, or produce any visual depiction.
    (d) The circumstance referred to in subsection (a) and (b) 
is that--
            (1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
            (2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
            (3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
            (4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
            (5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.

           *       *       *       *       *       *       *


Sec. 2256. Definitions for chapter

    For the purposes of this chapter, the term--
            (1)  * * *
            [(2) ``sexually explicit conduct'' means actual or 
        simulated--
                    [(A) sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-
                anal, whether between persons of the same or 
                opposite sex;
                    [(B) bestiality;
                    [(C) masturbation;
                    [(D) sadistic or masochistic abuse; or
                    [(E) lascivious exhibition of the genitals 
                or pubic area of any person;]
            (2)(A) Except as provided in subparagraph (B), 
        ``sexually explicit conduct'' means actual or 
        simulated--
                    (i) sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-
                anal, whether between persons of the same or 
                opposite sex;
                    (ii) bestiality;
                    (iii) masturbation;
                    (iv) sadistic or masochistic abuse; or
                    (v) lascivious exhibition of the genitals 
                or pubic area of any person;
            (B) For purposes of subsection 8(B) of this 
        section, ``sexually explicit conduct'' means--
                    (i) actual sexual intercourse, including 
                genital-genital, oral-genital, anal-genital, or 
                oral-anal, whether between persons of the same 
                or opposite sex, or lascivious simulated sexual 
                intercourse where the genitals, breast, or 
                pubic area of any person is exhibited;
                    (ii) actual or lascivious simulated;
                            (I) bestiality;
                            (II) masturbation; or
                            (III) sadistic or masochistic 
                        abuse; or
                    (iii) actual or simulated lascivious 
                exhibition of the genitals or pubic area of any 
                person;

           *       *       *       *       *       *       *

            (8) ``child pornography'' means any visual 
        depiction, including any photograph, film, video, 
        picture, or computer or computer-generated image or 
        picture, whether made or produced by electronic, 
        mechanical, or other means, of sexually explicit 
        conduct, where--
                    (A) the production of such visual depiction 
                involves the use of a minor engaging in 
                sexually explicit conduct;
                    [(B) such visual depiction is, or appears 
                to be, of a minor engaging in sexually explicit 
                conduct;]
                    (B) such visual depiction is a computer 
                image or computer-generated image that is, or 
                is indistinguishable (as defined in section 
                1466A) from, that of a minor engaging in 
                sexually explicit conduct; or
                    (C) such visual depiction has been created, 
                adapted, or modified to appear that an 
                identifiable minor is engaging in sexually 
                explicit conduct; [or] and
                    [(D) such visual depiction is advertised, 
                promoted, presented, described, or distributed 
                in such a manner that conveys the impression 
                that the material is or contains a visual 
                depiction of a minor engaging in sexually 
                explicit conduct; and]

           *       *       *       *       *       *       *


      CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND 
TRANSACTIONAL RECORDS ACCESS

           *       *       *       *       *       *       *


Sec. 2702. Voluntary disclosure of customer communications or records

    (a)  * * *
    (b) Exceptions for disclosure of communications.-- A 
provider described in subsection (a) may divulge the contents 
of a communication--
            (1)  * * *

           *       *       *       *       *       *       *

            (5) as may be necessarily incident to the rendition 
        of the service or to the protection of the rights or 
        property of the provider of that service; [or]
            (6) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 227 of the Victims of 
        Child Abuse Act of 1990 (42 U.S.C. 13032); or
            [(6)] (7) to a law enforcement agency--
                    (A) if the contents--
                            (i) were inadvertently obtained by 
                        the service provider; and
                            (ii) appear to pertain to the 
                        commission of a crime; or
                    [(B) if required by section 227 of the 
                Crime Control Act of 1990; or]
                    [(C)] (B) if the provider reasonably 
                believes that an emergency involving immediate 
                danger of death or serious physical injury to 
                any person requires disclosure of the 
                information without delay.
    (c) Exceptions for Disclosure of Customer Records.--A 
provider described in subsection (a) may divulge a record or 
other information pertaining to a subscriber to or customer of 
such service (not including the contents of communications 
covered by subsection (a)(1) or (a)(2))--
            (1)  * * *

           *       *       *       *       *       *       *

            (4) to a governmental entity, if the provider 
        reasonably believes that an emergency involving 
        immediate danger of death or serious physical injury to 
        any person justifies disclosure of the information; 
        [or]
            (5) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 227 of the Victims of 
        Child Abuse Act of 1990 (42 U.S.C. 13032); or
            [(5)] (6) to any person other than a governmental 
        entity.

           *       *       *       *       *       *       *


CHAPTER 223--WITNESSES AND EVIDENCE

           *       *       *       *       *       *       *


Sec. 3486. Administrative subpoenas

    (a) Authorization.--(1)(A)  * * *

           *       *       *       *       *       *       *

    (C) A subpoena issued under subparagraph (A) with respect 
to a provider of electronic communication service or remote 
computing service, in an investigation of a Federal offense 
involving the sexual exploitation or abuse of children shall 
not extend beyond--
            (i) requiring that provider to disclose [the name, 
        address, local and long distance telephone toll billing 
        records, telephone number or other subscriber number or 
        identity, and length of service of a subscriber to or 
        customer of such service and the types of services the 
        subscriber or customer] the information specified in 
        section 2703(c)(2) utilized, which may be relevant to 
        an authorized law enforcement inquiry; or

           *       *       *       *       *       *       *

                              ----------                              


         SECTION 227 OF THE VICTIMS OF CHILD ABUSE ACT OF 1990

SEC. 227. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC COMMUNICATION 
                    SERVICE PROVIDERS.

    (a)  * * *
    (b) Requirements.--
            (1) Duty to report.--Whoever, while engaged in 
        providing an electronic communication service or a 
        remote computing service to the public, through a 
        facility or means of interstate or foreign commerce, 
        obtains knowledge of facts or circumstances from which 
        a violation of section 2251, 2251A, 2252, 2252A, 2252B, 
        or 2260 of title 18, United States Code, involving 
        child pornography (as defined in section 2256 of that 
        title), or a violation of section 1466A or 1466B of 
        that title, is apparent, shall, as soon as reasonably 
        possible, make a report of such facts or circumstances 
        to the Cyber Tip Line at the National Center for 
        Missing and Exploited Children, which shall forward 
        that report to a law enforcement agency or agencies 
        designated by the Attorney General.

           *       *       *       *       *       *       *

            (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.
            [(3)] (4) Failure to report.--A provider of 
        electronic communication services or remote computing 
        services described in paragraph (1) who knowingly and 
        willfully fails to make a report under that paragraph 
        shall be fined--
                    (A)  * * *

           *       *       *       *       *       *       *

    (c) Civil Liability.--No provider or user of an electronic 
communication service or a remote computing service to the 
public shall be held liable on account of any action taken in 
good faith to comply with or pursuant to this section.

           *       *       *       *       *       *       *

    (f ) Conditions of Disclosure of Information Contained 
Within Report.--
            (1) In general.--No law enforcement agency that 
        receives a report under subsection (b)(1) shall 
        disclose any information contained in that report, 
        except that disclosure of such information may be 
        made--
                    (A)  * * *

           *       *       *       *       *       *       *

                    [(D) as permitted by a court at the request 
                of an attorney for the government, upon a 
                showing that such information may disclose 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.]
                    (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.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                         TUESDAY, JUNE 18, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    [Intervening business.]
    The next item on the agenda is H.R. 4623, the ``Child 
Obscenity and Pornography Prevention Act of 2002.''
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas, Mr. Smith, the Chairman of the Subcommittee on 
Crime, Terrorism, and Homeland Security, for a motion.
    Mr. Smith. Mr. Chairman, the Subcommittee on Crime, 
Terrorism, and Homeland Security reports favorably to bill H.R. 
4623 with a single amendment in the nature of a substitute, and 
moves its favorable recommendation to the full House.
    [The amendment follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point, and the 
Subcommittee amendment in the nature of a substitute, which 
Members have before them, will be considered as read, 
considered as the original text for purposes of amendment, and 
open for amendment at any point.
    The Chair recognizes the gentleman from Texas, Mr. Smith, 
to strike the last word.
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, child pornography and obscenity are not 
protected speech under the Constitution and therefore may be 
prohibited by the Government. In addition, where there is a 
compelling Government interest to do so, the Government may 
prohibit speech that would otherwise be protected if the 
prohibition is narrowly drawn to meet that compelling need.
    The Government has a compelling interest in protecting 
children from those who exploit them. The Supreme Court of New 
York v. Ferber concluded that, ``The prevention of sexual 
exploitation and abuse of children constitutes a Government 
objective of surpassing the importance,'' and that this 
compelling State interest extends to stamping out the vice of 
child pornography, ``at all levels in the distribution chain.''
    The Supreme Court further stated in Ferber, ``The 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.''
    The technological advances since Ferber have led many 
criminal defendants to insist that the images of child 
pornography they possess are not those of real children, 
forcing the Government to prove beyond a reasonable doubt that 
the images are depictions of real children.
    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 child pornographer is rarely a first generation product, 
and the retransmission of images can alter the image so as to 
make it impossible, even for when expert to testify, whether or 
not a particular image depicts a real child. The 1996 statutory 
language included any virtual depiction, and included pictures 
of youthful-looking adults. Thus the Supreme Court found to be 
overbroad.
    H.R. 4623, the ``Child Obscenity and Pornography Prevention 
Act of 2002'' is a bipartisan bill that responds to the 
Ashcroft v. Free Speech Coalition Supreme Court decision. The 
bill narrows the definition of child pornography so as to meet 
the Government's compelling interest in a constitutionally-
accepted way. The negative impact of Free Speech Coalition on 
the Government's ability to prosecute child pornographers is 
already evident. The National Center for Missing and Exploited 
Children testified that prosecutors nationwide have dismissed 
previously indicted cases as well as declined meritorious 
prosecutions in light of the Supreme Court's recent affirmation 
of the Ninth Circuit decision. In the absence of congressional 
action, this problem will continue to grow increasingly worse.
    A website that states it is, ``whetting the appetites of 
pedophiles everywhere,'' recently posted information on the 
ruling and announced, ``We strive to be a source you can trust 
for the best in virtual child pornography. With the law by our 
side, we are embarking on a marvelous journey, exploring the 
very frontiers of your rights as an American, and as you stand 
proudly next to us, fellow citizen, you can recite our motto to 
boost your morale: give me virtual pornography or give me 
death.''
    The mere existence of computer-generated depictions that 
are indistinguishable from depictions of real children allows 
defendants who possess either real or virtual depictions to 
escape prosecution. And that, Mr. Chairman is why we need this 
bill.
    I'll yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, sexual abuse of children, child pornography, 
including obscene computer-generated child pornography and 
other sex-related crimes against children are serious crimes 
that warrant prosecution and punishment. Such crimes and their 
punishments were left intact by the Supreme Court decision in 
Ashcroft v. Free Speech Coalition, issued just a few weeks ago 
on April 16th. What the Court struck down was the 
criminalization of computer-generated and other depictions of 
children in undesirable but not obscene situations where no 
child was actually involved in making of the material.
    Mr. Chairman, the Supreme Court has ruled that a computer-
generated depiction of a child, including the image of a 
teenager or other child engaged in sexually explicit activity 
is not an image--that is not an image of a real child, is 
protected speech. While such a depiction may be deplorable, the 
Court made it clear through several decisions that the right to 
free speech cannot be denied simply because some find the 
speech deplorable. The computer-generated depiction of a child 
that is not a real child is essentially no different than the 
22-year-old who looks--plays the role of a 15-year-old engaged 
in a sex scene in a movie such as we recently saw and was cited 
in the Supreme Court decision, ``American Beauty'' and 
``Traffic.'' Neither image is that of a real minor. Both 
involved an expression of ideas and thoughts that many find 
upsetting.
    The law called into question in Ashcroft is the Child 
Pornography Prevention Act of 1996, the CPPA. The problem the 
Court found with the law is that while it prohibited images 
that constitute child pornography, it also prohibited speech 
that may have serious literary, artistic, political or 
scientific value. As currently formed, it would be applied to a 
picture in a psychological manual, as well as a movie depicting 
the horrors of sexual abuse. The conduct and expression that 
the CPPA was aimed at preventing is essentially--is certainly 
despicable and unlawful, but the Court made it clear that 
protected speech may not be banned as a means to ban 
unprotected speech, which would turn the First Amendment upside 
down. The Court said the Government may not suppress lawful 
speech as a means of suppressing unlawful speech. Protected 
speech does not become unprotected merely because it resembles 
the latter. The Constitution requires the reverse.
    So, Mr. Chairman, whether you agree with the decision or 
not, the Court ruled just a few weeks ago. And I will offer an 
amendment at the appropriate time aimed at having the bill 
conform to that decision.
    Thank you, Mr. Chairman. Yield back.
    Chairman Sensenbrenner. Without objection, Member opening 
statements will appear in the record at this time.
    Are there amendments?
    Mr. Smith. Mr. Chairman?
    Chairman Sensenbrenner. Gentleman from Texas.
    Mr. Smith. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the Subcommittee amendment in the 
nature of a substitute to H.R. 4623, offered by Mr. Smith of 
Texas. ``Insert after section 1 the following: Section 2. 
Findings. Congress finds the following''----
    Chairman Sensenbrenner. Without objection, the amendment 
will be considered as read, and the gentleman from Texas is 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, I'm offering----
    Mr. Watt. Mr. Chairman, a point of order.
    Mr. Smith.--an amendment to H.R. 46----
    Chairman Sensenbrenner. Does the gentleman wish to reserve 
a point of order?
    Mr. Watt. Well, my point is we don't have the amendment. 
They seem to be distributing only on one side of the Committee, 
and we don't--it's hard to deal with an amendment we haven't 
seen.
    Chairman Sensenbrenner. We'll start the clock again.
    The gentleman from Texas.
    Mr. Smith. Mr. Chairman, I am offering an amendment to H.R. 
4623 to make a few key changes that will further strengthen the 
bill.
    First, the amendment includes congressional findings. I've 
added these findings to highlight the compelling Government 
interest. The Government has a compelling interest in ensuring 
that the criminal prohibitions against child pornography remain 
enforceable and effective.
    Second, the amendment would narrow the definition of child 
pornography even further than the bill did as introduced. 
Initially section 2 of the bill narrowed the definition of 
child pornography in several ways. Section 2(a) of the bill 
narrows the definition of child pornography under section 2256 
to depictions that are, ``computer images,'' that is, pictures 
scanned into a computer, or ``computer generated images.''
    The Court was concerned in Free Speech Coalition that the 
breadth of the language would prohibit legitimate movies like 
``Traffic'' or plays like ``Romeo and Juliet.'' Limiting the 
definition to computer images or computer generated images will 
help to exclude ordinary motion pictures from the coverage of 
virtual child pornography.
    Next the bill would narrow the definition by replacing the 
phrase ``appears to be'' with the phrase ``is indistinguishable 
from.'' That new phrase addresses the Court's concern that 
cartoon sketches and statues of children would be banned under 
the statute. At Subcommittee we added a definition to the term 
``indistinguishable'' to mean virtually indistinguishable in 
that the depiction is of a minor engaged in sexually explicit 
conduct.
    To clear up any ambiguity the amendment further limits the 
definition of ``indistinguishable'' by clarifying that this 
definition does not apply to depictions that are drawings, 
cartoons, sculptures or paintings depicting minors or adults.
    This amendment also amends section 8 of the bill to remove 
a confusing new reporting provision. At the request of the 
National Center for Missing and Exploited Children, the 
amendment includes a provision to fix a deficiency in the 
current law that will not allow the federally-funded Internet 
Crimes Against Children Task Forces to receive reports from the 
Cyber Tip Line. These task forces are State and local police 
agencies that have been identified by the National Center as 
competent to investigate and prosecute computer facilitated 
crimes against children.
    Only the designated Federal agencies, FBI and Customs, are 
authorized to receive direct access to these reports. Since 9-
11 the resources of the FBI have been stretched in a way which 
does not optimize the overall ability of law enforcement to 
effectively deal with the volume of cases being sent to the 
National Center for Missing and Exploited Children. The 
proposed language would authorize Internet Crimes Against 
Children Task Forces access to Cyber Tip Line reports. The vast 
majority of cases in this area are being investigated and 
prosecuted by State and local law enforcement. Accordingly, 
this amendment would allow the task forces to receive the 
information as well. The Department of Justice and the National 
Center have agreed to the language.
    Finally, in response to a new website that displays 
pictures of children being raped and sodomized by adults, where 
the pictures are clearly virtual but obscene, this amendment 
includes a provision that would enhance the penalties for such 
obscenity. This website was clearly created in response to the 
Supreme Court decision, and proudly states that it is there for 
whetting the appetites of pedophiles everywhere.
    The Supreme Court's 1982 decision in New York v. Ferber, 
which declared child pornography was not constitutionally 
protected speech, helped drive the child pornography market 
underground. It is apparent that the Supreme Court's recent 
decision may have done the opposite and brought that market 
out. Accordingly, I believe that these changes to the bill are 
needed to strengthen it, and Mr. Chairman, I will yield back 
the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, first I'd like to say that some of 
the findings, like Finding No. 11, and some of the others, this 
is the first time I've seen this and may need to ask some 
questions. And I guess the first question to the gentleman from 
Texas would be whether or not the provision in the original 
bill requires a finding of obscenity before conviction can take 
place in any part of the bill if this amendment is adopted.
    Mr. Smith. If the gentleman will yield, it's my 
understanding that it would not require that for child 
pornography.
    Mr. Scott. Reclaiming my time to ask another question, on 
page 1 of the Committee amendment in the nature of a 
substitute, section 2, on line 9, would it still be illegal, 
under the bill if the amendment is adopted, for computer-
generated images indistinguishable, is that language still in 
the bill? On page 1 of the Committee amendment in the nature of 
a substitute, line 9, are we still prohibiting non-obscene 
computer-generated images that do not involve real children?
    Mr. Smith. If the gentleman will yield?
    Mr. Scott. I'll yield.
    Mr. Smith. That language, computer image or computer-
generated image that is nearly indistinguishable is still in 
the----
    Mr. Scott. Now, you struck ``nearly.''
    Mr. Smith. Excuse me?
    Mr. Scott. You struck ``nearly'' in your amendment.
    Mr. Smith. That's correct. That would be the one change.
    Mr. Scott. But the computer-generated image is still 
prohibited even though it is not obscene?
    Mr. Smith. The answer is yes, when it applies to child 
pornography just simply because child pornography can be 
prohibited even if not technically under the obscene 
definition.
    Mr. Scott. Reclaiming my time, that is exactly what the 
Supreme Court said you couldn't do under Ashcroft, and that is 
the entire issue of this legislation, whether or not you can 
declare child pornography that is not obscene under the 
obscenity measure, whether or not you can prohibit it. And the 
Supreme Court, five Justices, at least five, with a couple 
concurring in part, said you cannot do that. The ruling was 
just a few weeks ago.
    Mr. Smith. If the gentleman will yield, we simply have a 
different reading of what the Supreme Court said, and I believe 
that this bill, as drafted, because it is much more narrow than 
the law that was found to be unconstitutional will be found 
constitutional by a majority of the Supreme Court members.
    Mr. Scott. Reclaiming my time. Then, Mr. Chairman, I think 
the only thing indistinguishable going on is that this statute 
is indistinguishable from the one the Supreme Court threw out 
just a few weeks ago, and I yield back my time.
    Ms. Lofgren. Would the gentleman yield for a question?
    Mr. Scott. Excuse me. I'll yield.
    Ms. Lofgren. For the Chairman of the Committee. I don't 
know whether it's the intention of the Chairman to recess for 
lunch, but this is a long and reasonably complicated amendment 
that I think is offered in good faith to try and reach the 
issues raised by the Supreme Court. I have a number of 
questions about the 1466B on page 8.
    I am eager to meet the issues raised by the Court so that 
we can have a strong response, but I'm not sure we're going to 
be able to really----
    Chairman Sensenbrenner. The gentlewoman from California 
makes a good suggestion, and the Chair is prepared to recess 
now until 1:15 so that Members and staff can look at this 
amendment.
    Before doing so, however, let the Chair state that we have 
a number of other bills on the calendar, and the Chair intends 
to go to about 3:30 p.m. If we get done with the other bills on 
the calendar, excluding Mr. Frank's immigration bill, because 
we've still got a little more work to do on that, then we won't 
have to come back tomorrow. But if we don't get through the 
other bills, the remaining part of the calendar, then we will 
have to come back tomorrow. It's my hope that we will be able 
to get things done by then.
    The gentleman from Massachusetts.
    Mr. Frank. Mr. Chairman, I would ask if I could strike the 
last word, and I agree. I don't want to hold up a recess, but I 
have a Subcommittee markup in the Housing Subcommittee, where 
I'm Ranking Member and I may not be able to get back. And I did 
just want to express my concern over the implications of it, 
hoping it gets discussed further.
    In the amendment, Section 2 Findings, lines 8 through 10, 
``Even otherwise protected speech may be regulated pursuant to 
a statute that is narrowly drawn to promote a compelling 
Government interest.'' One that doesn't seem to me to be 
necessary to the bill since the bill asserts that child 
pornography is not entitled to protection.
    But I am troubled by that and by the implications of it. 
Perhaps I shouldn't be because it does seem to me it would be a 
strong argument to be used in defense of the Shays-Meehan Bill, 
which is protected speech that was being regulated. But I am 
troubled about that. I don't know why it's necessary, and I 
would hope we could have some discussion on this. I mean 
protected speech, I assume this means more than time, place and 
manner regulation, which is--wouldn't rise to that. So I'd 
yield to the gentleman from Texas, but I would hope that would 
get some focus.
    Mr. Smith. Thank you, Mr. Frank, for yielding. I just want 
to make a couple points. One, that particular statement is from 
the Supreme Court decision as you say, United States v. 
Playboy, but I think you do make a valid point that may not be 
relevant to the subject at hand, and for that reason, I'd be 
willing to take that sentence out.
    Mr. Frank. I thank the gentleman.
    Chairman Sensenbrenner. The Committee stands recessed until 
1:15 p.m. Members should be prompt so we don't have to come 
back tomorrow.
    [Whereupon, at 11:58 a.m., the Committee recessed, to 
reconvene at 1:15 p.m., the same day.]
    AFTERNOON SESSION
    Chairman Sensenbrenner. The Committee will be in order. 
When the Committee recessed for lunch, the gentleman from 
Texas, Mr. Smith, had made a motion to report favorably H.R. 
4623. Pending at that time was an amendment in the nature of a 
substitute approved by the Subcommittee and an amendment to the 
Subcommittee amendment in the nature of a substitute offered by 
Mr. Smith of Texas.
    For what purpose does the gentleman from Texas seek 
recognition for unanimous consent?
    Mr. Smith. Mr. Chairman, I have an unanimous consent 
request at the desk.
    Chairman Sensenbrenner. The clerk will report the U.C.
    Is it not at the desk?
    The Clerk. No, sir.
    Mr. Smith. Mr. Chairman, I will be happy to read it, if 
that will facilitate the consideration.
    Chairman Sensenbrenner. The clerk now has it.
    Mr. Smith. Okay.
    The Clerk. Unanimous consent offered by Subcommittee 
Chairman Smith. Mr. Chairman, I ask unanimous consent that the 
pending amendment be modified as follows: On page 1, line 8, 
strike the sentence beginning with the word ``even,'' and the 
accompanying citation. And on page 5, strike line 19 through 
23, and put a period after the word ``images'' on line 18.
    Chairman Sensenbrenner. Without objection, the amendment is 
modified to reflect the unanimous consent just reported by the 
clerk.
    Further debate?
    If not, the question is on the amendment to the 
Subcommittee amendment in the nature of a substitute as 
modified.
    Mr. Smith. Parliamentary inquiry, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman will state his 
inquiry.
    Mr. Smith. You're voting on?
    Chairman Sensenbrenner. The question is on the amendment to 
the subcommittee amendment in the nature of a substitute as 
modified, offered by the gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I will not use the 5 minutes. I would just 
like to commend the gentleman from Texas for this effort. And I 
believe that these provisions are very carefully crafted and 
are constitutional. And I'm proud to support the effort.
    And I yield back the balance of my time.
    Chairman Sensenbrenner. For what purpose does the other 
gentleman from California, Mr. Schiff, seek recognition?
    Mr. Schiff. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I also want to join in support of the amendment 
to the amendment, as well as the substitute amendment.
    I started out somewhat skeptical of our ability to craft 
legislation around the Supreme Court decision in Ashcroft. But 
after further study of the Ashcroft decision and consultation 
with the Subcommittee Chair and the Department of Justice, I 
think there are a couple of reasons why this legislation 
narrowly crafted is likely to survive constitutional muster, 
although it will be a very close question.
    The first is that the Court in Ashcroft said that the 
Government could not rely on the Ferber decision to support its 
case but left open a small window of opportunity, that on a 
basis other than Ferber, a law precluding certain not obscene 
but nonetheless child pornography might be upheld. And I think 
the compelling interest in our trying to fit within that narrow 
window is the technological fact that we are now at a point 
where we really cannot distinguish between virtual and real 
child pornography, or we're very close to that point.
    And given that problem, if we only go after pornography 
that is produced using real children, and we do not go after 
that which is virtually indistinguishable from such, we will 
effectively preclude any prosecution of child pornography.
    So I think there's a compelling reason to try to avail 
ourselves of the window that the Supreme Court left open. And 
the precise window they left open was the use of an affirmative 
defense.
    And I think by targeting this prohibition to child 
pornography that is virtually indistinguishable from real, that 
is computer-generated, we have defined it as narrowly as 
possible while at the same time leaving the Government its 
ability to prosecute these cases.
    I want to compliment the gentleman for his craftsmanship 
and urge my colleagues to support----
    Mr. Smith. Would the gentleman yield briefly?
    Mr. Schiff. I'd be happy to yield.
    Mr. Smith. Mr. Chairman, I just want to thank the gentleman 
from California, as well as the gentlewoman from California, 
both for their comments and for their support. And Mr. Schiff 
has, along in the process, made several suggestions which we 
have adopted and which I appreciate as well.
    I'll yield back.
    Chairman Sensenbrenner. The question is on the Smith 
amendment to the Subcommittee amendment in the nature of a 
substitute as modified.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 4623, offered by Mr. Scott.
    Page 1, line 6, strike all of subsection (a) and 
redesignate succeeding subsections accordingly.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, this amendment would actually 
conform the bill to the Supreme Court's actual decision in 
Ashcroft v. Free Speech Coalition, as opposed to trying to 
conform it to an opinion which has been opposed by at least 
five judges in that case.
    Proponents of the bill believe the Court left open the 
question of whether the Government can criminalize computer-
generated images that are not obscene and do not involve real 
children. Obscene images can always be prosecuted, but the 
Court clearly said that the Government cannot criminalize 
images which are not obscene unless the product involved actual 
children.
    In striking down the offending portions of the CPPA and 
upholding its decision in Ferber from 1982, the Court stated: 
In contrast to the speech in Ferber, speech that itself is the 
record of sexual abuse, the CPPA prohibits speech that records 
no crime and creates no victims by its production. Virtual 
child pornography is not intrinsically related to the sexual 
abuse of children as were the materials in Ferber.
    Ferber then not only referred to the distinction between 
actual and virtual child pornography, it relied on it as a 
reason supporting its holding. Ferber provides no support for a 
statute that eliminates a distinction and makes the alternative 
mode criminal as well.
    It further cited Osborne, a 1990 case, which said the 
distribution of descriptions or other depictions of sexual 
conduct not otherwise obscene, which do not involve live 
performance or photographic or other visual reproduction of 
live performance, retains First Amendment protection.
    Now, the proponents also argue that the Court did not 
consider the harm done to children that will occur through 
technological advances when you can't tell real children from 
virtual children.
    And it addressed the Government's ability to prosecute. It 
said that the idea that the Government can't prosecute as a 
problem, it says the hypothesis is somewhat implausible. If 
virtual images were identical to illegal child pornography, the 
illegal images would be driven from the market by the 
indistinguishable substitutes. Few pornographers would risk 
prosecution by abusing real children if fictional computerized 
images would suffice.
    They went on to say that the argument that protected speech 
may be banned as a means to ban unprotected speech, that this 
analysis turns the First Amendment upside down. The Government 
may not suppress lawful speech as a means of suppressing 
unlawful speech.
    It also said that the Government raises serious 
constitutional difficulties by seeking to impose on the 
defendant the burden of proving his speech was not unlawful. An 
affirmative defense applies only after the prosecution has 
begun, and the speaker must himself prove, on pain of felony 
conviction, that his conduct falls within the affirmative 
defense.
    In cases under CPPA, the evidential burden is not trivial. 
Where the defendant is not the producer of the work, he may 
have no way of establishing the identity or even the existence 
of the actors. If the evidentiary issue is a serious problem 
for the Government, as it asserts, it will be at least as 
difficult for an innocent possessor.
    The proposed statute, however, makes by its very words 
illegal what the Court just said was legal. If it were an 
evidentiary rule that said that proving the real child case 
would be made with the introduction of indistinguishable 
images, subject, I guess, to an affirmative defense, that might 
be different. But here the proposed criminal statute itself 
makes illegal exactly what the Court said was protected speech.
    Five Justices joined in the majority opinion. One 
concurred, one concurred in part and dissented in part, and two 
dissented. With five Justices agreeing with the whole decision 
and two agreeing in part, this isn't a close, split decision.
    So, Mr. Chairman, I think my amendment would bring this 
bill in compliance with the clear provisions of Ashcroft v. 
Free Speech Coalition and avoid the necessity of the Court 
telling us again that we cannot prosecute child pornography 
unless real children were in fact involved in the production of 
the material, unless the material was legally obscene.
    I hope we would adopt the amendment to conform the bill to 
the Constitution. And I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Texas.
    Mr. Smith. Mr. Chairman, I oppose the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. And I noticed that Mr. Schiff was seeking to be 
recognized, so I'll be happy to yield part of my time to him.
    Mr. Schiff. I thank the gentleman for yielding.
    One observation I wanted to make, because the concern the 
gentleman from Virginia has raised was one that I shared as 
well, but I think the Court in Ashcroft explicitly states that 
we need not decide, however, whether the Government could 
impose this burden on a speaker. Even if an affirmative defense 
can save a statute from First Amendment challenge, here the 
defense is incomplete and insufficient even on its own terms.
    So the Court said that we don't decide here whether you can 
establish affirmative defense, because affirmative defense in 
the preexisting law was inadequate. This is a different 
affirmative defense established in this bill. I think this 
affirmative defense is precisely the one the Court says it left 
open.
    Now, if the Court is saying that we haven't decided today 
whether you could prohibit virtual as well as real, if you 
provided an affirmative defense that allowed the defendant to 
prove that in fact it was all virtual, if the Court has said 
we're leaving that open, the Court has invited the Congress to, 
if it finds in its judgment appropriate, establish that 
affirmative defense.
    And the only way that an affirmative defense makes sense is 
if what you're attacking is child pornography that is 
indistinguishable, real from virtual, because if this statute 
were now rewritten to prohibit only real child pornography, 
what would the point be of an affirmative defense? There would 
be no need to show that it was produced using a computer, 
because that would not even be precluded. That would not be an 
affirmative defense; that would be a real defense by any means.
    So the Court must have contemplated that the new statute, 
if there was one to be passed by Congress establishing an 
affirmative defense, would have to prohibit conduct that was 
slightly broader than only real.
    And what we have crafted here I think is something that is 
as narrow as possible; that is pornography indistinguishable 
from real, that basically we can't really tell whether it's 
real or it's virtual.
    So I think that by the Court inviting an affirmative 
defense, they are in fact saying that it's an open question, 
whether the Congress could prohibit something slightly more 
than only real.
    And I think that a real good faith effort has been made to 
craft this law in the narrowest way possible to test that 
theory of an affirmative defense, which I think the Court will 
likely support.
    I yield back to the gentleman.
    Mr. Smith. I thank the gentleman for his comments.
    Mr. Chairman, Congress does have a compelling State 
interest to protect children from exploitation, and that 
interest extends to the prosecution of those who would or do 
exploit children. The problem is that a computer image seized 
from a child pornographer is rarely a first generation product 
and the retransmission of images can alter the image and make 
it impossible even for an expert to testify whether or not a 
particular image depicts a real child.
    Realizing that this technology threatened the Government's 
compelling State interests in protecting real children to the 
effective prosecution of the child pornography laws that cover 
the visual depictions of real children, Congress in 1996 
attempted to address this concern. The 1996 statutory language 
included any virtual depictions and included pictures of 
youthful-looking adults and didn't just limit it to children. 
That, understandably, the Supreme Court found to be overbroad.
    This bill narrows the definition to a subcategory of visual 
depictions that trigger a compelling State interest. Evidence 
submitted to the Congress demonstrates that technology is 
available today that allows child pornographers to create 
depictions of virtual children that an ordinary person viewing 
the depictions could not distinguish from real children. It 
also allows child pornographers to disguise depiction of real 
children to look like computer-generated pictures and allows 
child pornographers to disguise depictions of real children to 
make those children unidentifiable.
    The Court does not prohibit the Congress from prohibiting 
virtual child pornography when the prohibition is narrowly 
drawn to promote a compelling Government interest. And that's 
what we do in this particular bill.
    I'll only add one thing to what the gentleman from 
California has said so well, and that is in regard to the 
affirmative defense, and I'll quote Justice Thomas in his 
concurring opinion: ``The Court does leave open the possibility 
that a more complete affirmative defense could save a statute's 
constitutionality, implicitly accepting that some regulation of 
virtual child pornography might be constitutional.'' And no 
member of the Court took exception to that statement.
    Mr. Chairman, we have narrowed the definition in 
significant ways and have pointedly addressed the Court's 
concerns about affirmative defense. The Court gave us an 
opportunity, and I believe we have an obligation to take it to 
protect our children.
    And I'll yield back the balance of my time.
    Chairman Sensenbrenner. The question is on----
    Mr. Scott. Mr. Chairman, the gentleman has some time. I'd 
like to read----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Scott. I'd ask unanimous consent that he be given 2 
additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. And if the gentleman would yield, so I could 
read----
    Mr. Smith. I'll be happy to yield to the gentleman from 
Virginia.
    Mr. Scott. The paragraph that begins: "We do not decide, 
however, whether the Government could impose this burden on a 
speaker, even if the affirmative defense can save the statute 
from the First Amendment challenge, here the defense is 
incomplete."
    But they conclude that paragraph by saying: "For this 
reason, the affirmative defense cannot save the statute, for it 
leaves unprotected a substantial amount of speech not tied to 
the Government's interest in distinguishing images produced 
using real children from virtual ones."
    The concurring opinion on Thomas is one vote. Five people 
signed the majority opinion, which disagreed with Thomas' 
opinion.
    Mr. Schiff. Would the gentleman yield?
    Mr. Smith. You can't find anything in the Ashcroft opinion, 
in the main opinion, with five judges signing it, that agrees 
with Thomas' concurring opinion.
    Mr. Schiff. Would the gentleman yield?
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Texas.
    Mr. Smith. Let me respond briefly, and then I'll be happy 
to yield to the gentleman from California.
    I'll mention a couple of things. First of all, you 
mentioned only Justice Thomas referred or mentioned affirmative 
defense. However, in the quote I just mentioned, I also pointed 
out that no other member took exception to what he said.
    But I will say, we expect to pick up one or more other 
Supreme Court Justices, if the gentleman wants to know the 
strategy--particularly, for instance, Sandra Day O'Connor, 
perhaps Kennedy--by focusing specifically on minors and not 
having the constitutionally--the unconstitutionally overbroad 
language of perhaps including adults.
    So by narrowing the scope both in regard to the age of 
individuals involved and narrowing the scope of virtually 
indistinguishable between one image and another, and also by 
having a better affirmative defense, we expect to pick up a 
number of votes of Supreme Court Justices.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. I yield to Mr. Scott.
    Mr. Scott. Thank you. And I appreciate the gentleman 
yielding so I can read again what I read the Supreme Court 
said: "The distribution of descriptions or other depictions of 
sexual conduct not otherwise obscene, which do not involve live 
performances or photographic or other visual productions of 
live performances, retains First Amendment protection."
    Five judges signed that. The Five judges also signed the 
opinion that said: The Government raises serious constitutional 
difficulties by seeking to impose on the defendant the burden 
of proving a speech was not lawful, and affirmative defense 
applies only after prosecution has begun. And the speaker must 
himself prove, on the pain of felony conviction, that his 
conduct falls within the affirmative defense. In cases under 
the CPPA, the evidentiary burden is not trivial. Where the 
defendant is not the producer of the work, he may have no way 
of establishing the identity or even the existence of the 
actors. The evidentiary issue--if the evidentiary issue is a 
serious problem for the Government, as it asserts, it will be 
at least as difficult for the innocent possessor.
    They've already dealt with the problem of prosecution. They 
said that's too bad. You may agree or disagree with that 
decision, but they said it's too bad.
    Mr. Schiff. Will the gentleman yield?
    Mr. Watt. I'll yield to the gentleman from California.
    Mr. Schiff. I thank the gentleman for yielding.
    The Court's majority opinion, though, also provides the 
language that we've been referring to with respect to an 
affirmative defense. The particular portion that the gentleman 
read takes issue with the affirmative defense that existed in 
the law that was struck down.
    But what the Court majority opinion also said is that: We 
leave open the question whether a better-framed affirmative 
defense would succeed in saving the statute.
    The flaw that was identified in the preexisting statute and 
its affirmative defense was that the affirmative defense 
``provides no protection to persons who produce speech by using 
computer imaging or through other means that do not involve the 
use of adult actors who appear to be minors.''
    That flaw, that inadequate affirmative defense, has been 
cured by this bill, which does provide an affirmative defense, 
if the speech was produced using computers or using adult 
actors who appear to be minors.
    So the flaw that the Court identified in the preexisting 
affirmative defense has been cured. And the question of whether 
a better affirmative defense, such as we have here, will 
survive constitutional scrutiny was explicitly left open by the 
majority of the Court.
    So I think that the most that can be said, and the least 
that can be said, is that the Court has specifically left open 
the issue of whether this would be constitutional. And I think 
the compelling reason why we ought to test this question is, in 
the absence of this action, I simply think it will be 
impossible for the Government to prosecute child pornography 
because it will always be a defense that the material could 
have been computer-produced. It simply will be an unmeetable 
burden for the Government to show that whatever the photograph 
or image is could not have been produced using a computer.
    Mr. Nadler. Would the gentleman yield for a question?
    Mr. Schiff. I'd be happy to yield back to the gentleman.
    Mr. Watt. I'll yield to Mr. Nadler.
    Mr. Nadler. Thank you.
    Isn't it a question of fact, whether in fact the alleged 
child pornography is in fact child pornography or is virtual, 
and the Government has to prove the case?
    Mr. Schiff. Will the gentleman yield?
    Mr. Nadler. And let me just say that if the Government 
can't prove it under the Supreme Court decision, it's 
constitutionally protected.
    Mr. Schiff. If the gentleman will yield?
    Mr. Watt. I'll yield to the gentleman.
    Mr. Schiff. It is true under the current law, and in light 
of the Ashcroft decision, that you cannot prosecute child 
pornography unless you prove it's real. The problem is, as 
we're finding from prosecution offices around the country, that 
they cannot generally meet that burden because computer 
technology has gotten so good.
    So if we are going to allow the prosecution to prosecute 
child pornography, the only way to do it is to prohibit 
pornography that is virtually indistinguishable from real----
    Mr. Nadler. Would the gentleman yield again for a question?
    Mr. Schiff.--and allow an affirmative defense where the 
defendant can show that in fact it was not real.
    Mr. Watt. Let me just reclaim my time quick enough to say--
because it's about to run out--that it seems to me that what 
you're doing, though, is shifting the burden of proof to the 
defendant. And I just--I mean, with the presumption of 
innocence, this affirmative defense thing really has the effect 
of shifting the burden of proof. And I don't see how you get 
around that in this bill. Maybe I'm wrong.
    I'll yield back.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The question is on--the gentleman 
from New York, Mr. Nadler.
    Mr. Nadler. Thank you.
    I don't--I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized.
    Mr. Nadler. Let me make a comment first, and then I think 
Mr. Watt wanted some time.
    Mr. Watt. Mr. Scott.
    Mr. Nadler. No, I meant Mr. Watt. I thought you wanted 
time. Mr. Scott.
    Mr. Chairman, if in fact the Supreme Court has said, as it 
has, that only the actual picture, not the virtual image, may 
be prosecuted as child pornography constitutionally, and the 
evil, obviously--the particular evil of child pornography is 
the fact that you use children to produce it, that children are 
being exploited--whereas, in creating a virtual image, there 
are no children being used or exploited.
    Standard criminology, you know, Criminal Law 101 says that 
the prosecution must prove every element of the crime. And one 
of the elements of the crime is that, in fact, a child was 
used. That's what the Supreme Court said.
    So I don't see how you can shift the burden of proof to the 
defense to prove that he didn't do something which the 
prosecution hasn't proved he did. So I can't see how this bill 
or shifting the burden to an affirmative defense can get around 
the Supreme Court decision, which is very clear.
    And I think this bill is the newest in a serious of 
attempts to do what the Supreme Court keeps telling us we can't 
do and will be just as futile as the previous attempts.
    Mr. Smith. Would the gentleman yield very briefly?
    Mr. Nadler. I think Mr. Scott wanted me to yield first.
    Mr. Scott. Yes. This is actually worse than shifting the 
burden of proof. The Supreme Court said you can't prohibit 
child pornography that does not use real children, unless it's 
obscene. This puts in the criminal statute exactly that, that 
it could be virtual child pornography and that's illegal.
    Now, the affirmative defense comes in and proves, if that's 
the case, if that's the evidence that's presented, that virtual 
child pornography--the exact same thing the Supreme Court said 
you can't prohibit--if that's what you put on as your prime 
facie case, you've got a conviction. You've got a conviction 
under language the Supreme Court said you can't do.
    Now, if the statute said real, live children, and you can 
introduce evidence that's virtually indistinguishable and then 
try to shift the burden on that, that's one thing. But you have 
in the prime facie case, in the criminal statute, language 
which clearly the Court said, every different kind of way it 
can, you can't prohibit.
    And that's different from the burden of proof. The Supreme 
Court said it's not illegal. And if that's your prime facie 
case, why do you need any defense?
    Mr. Schiff. Will the gentleman yield?
    Mr. Nadler. I'll yield.
    Mr. Schiff. I think the gentleman from New York is correct 
in that, when you use an affirmative defense, you are in effect 
shifting the burden of proof on an element of what is being 
charged. The fact is there are many affirmative defenses 
throughout the criminal law. They generally exist in areas 
where the defense rather than the prosecution is in unique 
position to know the truth of the merits as to that element. 
Sometimes it has to do with a defendant's mental state or their 
diminished capacity to commit a crime.
    In this case, the knowledge of whether something was 
produced using a real child or using a computer is more often 
going to be uniquely in the possession of the person creating 
the image.
    Now, I recognize the discomfort in shifting----
    Mr. Nadler. Reclaiming my time, the problem with what 
you're saying is that affirmative defenses cannot be used to 
relieve the prosecution of the burden of proving an essential--
a constitutionally essential element of the crime, which in 
this case has been specifically stated by the Supreme Court to 
be constitutionally essential.
    Mr. Scott. Will the gentleman yield?
    Mr. Nadler. Yes, I will.
    Mr. Scott. And another problem is, the Supreme Court dealt 
with that when it said: "If the evidentiary issue is a serious 
problem for the Government, as it asserts, it will be at least 
as difficult for the innocent possessor."
    They dealt with that problem, and they knocked it out of 
the park. You can't use that argument.
    Mr. Smith. Will the gentleman----
    Mr. Schiff. Will the gentleman----
    Mr. Scott. Five judges signed that opinion.
    Mr. Schiff. If the gentleman will yield one more moment?
    Mr. Nadler. Yes.
    Mr. Schiff. The fact is, the majority of the Supreme Court 
said they were leaving open the question of whether an 
affirmative defense would save the statute.
    So far from deciding in the case that you could not have a 
shifting of the burden on this point, the Supreme Court 
explicitly said: We are not deciding this question.
    Mr. Smith. Would the gentleman----
    Mr. Nadler. Reclaiming my time, and then I'll yield to Mr. 
Smith, I'll simply say they left it open because they didn't 
have to reach it for decision, because they said that the 
prosecution has to prove it was a real child.
    I'll yield to Mr. Smith.
    Mr. Smith. Very briefly, I just want to make the point 
that----
    Chairman Sensenbrenner. The gentleman's time has expired.
    The question is on the Scott amendment to the Committee 
amendment in the nature of a substitute.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment to the Subcommittee amendment in the nature of a 
substitute is not agreed to.
    Are there further amendments?
    Ms. Hart. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart.
    Ms. Hart. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the Subcommittee amendment in the 
nature of a substitute to H.R. 4623 offered by Ms. Hart.
    Add at the end the following: Section, investigative 
authority relating to child pornography.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentlewoman is recognized 
for 5 minutes.
    Ms. Hart. Thank you, Mr. Chairman.
    This amendment makes technical changes to update the 
current law regarding the use of administrative subpoenas in 
the child pornography investigations.
    Under section 3486, the use of administrative subpoenas in 
child pornography investigations is permitted pursuant to 
section 2703 of the Electronic Communications Privacy Act.
    We recently updated the type of information that may be 
acquired through an administrative subpoena in section 2703 but 
failed to update the same language in section 3486.
    The best way to change this oversight, in my opinion, is by 
referencing the language of section 2703 in section 3486, which 
is what my amendment will do.
    The practical implications of this change are important to 
vigorous investigations of online crimes against children. 
Currently, section 3486 only allows the collection of 
information such as the name, address, and length of service of 
the service provider.
    With child pornographers able to hide behind false 
identities, my amendments will allow investigators to collect 
the important billing information that can show the true 
identity of these individuals and further the investigation in 
a more timely manner.
    The protection of children from harmful material and online 
predators in an important issue. And I thank the Chairman and 
the Committee for acting so quickly on this issue, and so 
thoughtfully, to address the concerns raised by the recent 
Supreme Court decision. But because protecting our children 
from dangerous individuals is also very important, I believe 
it's necessary we provide law enforcement with tools to track 
these criminals who travel in cyberspace to prey on children.
    One of the major issues raised in the Ashcroft v. Free 
Speech Coalition decision, and in the commentary after the 
decision, was law enforcement's concerns about tracking online 
predators. My amendment simply updates criminal law and 
provides law enforcement with reasonable authority to identify 
online offenders. In short, this amendment makes a necessary 
clarification to recent updates to the criminal code, which 
will ultimately assist in the investigation and apprehension of 
child pornographers.
    I ask the Committee to adopt the amendment and further want 
to alert the Committee, Mr. Chairman, that recently in 
Pittsburgh there was a case where, fortunately, the predator 
had registered for his Internet service under his own name and 
his own address and so was easily tracked. If that same 
predator had not done so, the girl that he held for only 3 
days, tied to a bed in his apartment, would have been there for 
much longer, and we just don't know what could have happened to 
her. Fortunately, she was rescued safely by law enforcement, 
because she was easily tracked.
    I yield back.
    Mr. Nadler. Will the gentlelady yield for a question?
    Chairman Sensenbrenner. Does the gentlelady from 
Pennsylvania yield to the gentleman from New York?
    Ms. Hart. Sure. Yes, thanks, Mr. Chairman.
    Mr. Nadler. Yes, Mr. Chairman, I apologize for not having 
had an opportunity to peruse all these sections of Title 18. I 
have to ask this question.
    You've giving this extra information--the Government 
demands this information from whom? From the ISP?
    Ms. Hart. That's correct. This is similar to what we 
recently did, where we allow the administrative subpoena to 
have law enforcement get more information from the ISP 
regarding who is actually getting the service.
    Mr. Nadler. That 2703(c)(2) that your referencing deals 
with what situation?
    Ms. Hart. It is a situation where an administrative 
subpoena can be used to receive information through the ISP.
    Mr. Nadler. And 3486--what I'm confused about----
    Ms. Hart. We're adding to this section----
    Mr. Nadler. The same language.
    Ms. Hart.--a similar section that we had added to a 
different section.
    Mr. Nadler. No, I understand that. What I want to know is, 
what do these two different sections deal with? And, therefore, 
what's the impact of importing language from the one to the 
other? In other words, if they dealt with the same thing, then 
you wouldn't need to do this.
    Ms. Hart. 2703 lists specifically the information that can 
be acquired through an administrative subpoena, and 3486 allows 
its use.
    Mr. Nadler. Allows the use of the same----
    Ms. Hart. Of the administrative subpoena.
    Mr. Nadler. Of the information gathered under section 2703?
    Ms. Hart. That's correct.
    Mr. Nadler. So they're dealing with the same situation, 
just different stages in the same investigation?
    Ms. Hart. Yes. Different stages, right. Or instructions on 
what can be acquired.
    Mr. Nadler. Okay, thank you.
    Chairman Sensenbrenner. Does the gentlewoman yield back 
now?
    The question is on the Hart amendment to the Subcommittee 
amendment in the nature of a substitute.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment to the Subcommittee amendment in the nature of a 
substitute is agreed to.
    Are there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Does the gentlewoman from Texas have an amendment?
    Ms. Jackson Lee. Yes, I'm sorry. I have an amendment at the 
desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the Subcommittee amendment in the 
nature of a substitute to H.R. 4623, offered by Ms. Jackson Lee 
of Texas.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. And the gentlewoman from Texas is 
recognized for 5 minutes.
    Ms. Jackson Lee. I thank you very much.
    I think the Chairman of the Crime Subcommittee and the 
Ranking Member have some commonality in their approach. And 
that is that this bill is being rewritten because we realize 
that the original legislation was ruled unconstitutional, and 
we're trying to ensure that we protect our children--that's my 
concern, protecting our children--but ensuring that we 
recognize that we have three branches of Government, the 
executive, the judiciary--the judicial and the executive.
    And for that reason, I'd ask my colleagues to review the 
amendment that I have that speaks to the controversy of the 
legislation but does not take away from the legislation's 
intent, and that is to protect our children.
    Having just come back from the U.N. special session on 
children, realizing that there's not been an international 
focus on children in 12 years, I would hope that we could find 
compromise in this legislation. It is aimed at getting rid of 
pornography--unsightly, horrific, abusive, violent pornography 
that goes against our children.
    Therefore, I offer an amendment that would eliminate the 
context issue of the pending legislation, something that the 
Supreme Court referred to. By adding this, I propose to give 
the judiciary a more definitive standard to evaluate a 
pornography case. One of the issues raised in Ashcroft is that 
Child Pornography and Prevention Act of 1996 did not prevent 
prosecution of the makers of the movie ``Traffic.''
    For instance, the literal terms of the statute embrace a 
Renaissance painting depicting a scene from classical 
mythology, a picture that appears to be of a minor engaging in 
sexually explicit conduct. The statute also prohibits Hollywood 
movies filmed without any child actors if a jury believes that 
an actor appears to be a minor engaging in actual or simulated 
sexual intercourse.
    My amendment would apply the Miller v. California test to 
the content of the material. In this test, the Government must 
prove that the work taken as a whole appeals to the prurient 
interests; is patently offensive in light of community 
standards; and lacks serious literary, artistic, political or 
scientific value.
    I think this helps to narrow this particular legislation to 
ensure that our focus is on children and not on the artistic 
beliefs and the artistic tastes of adults that may include 
artistic, political or scientific value.
    I would hope that what we are trying to do today is to get 
after the bad guys who are attacking our children and not begin 
to argue about the content.
    I would offer to say to my colleagues, when a well-known 
mayor of New York attempted to stop a display of art, whether 
it be questionable or not, in one of its major museums, we will 
find that the courts ruled against him.
    And so I would hope that we would not send this legislation 
out of this Committee to the floor of the House and back out to 
be again ruled unconstitutional. The key element of what we're 
trying to do is to eliminate pornography as it relates to the 
attack on our children. And I believe that we're also 
recognizing that the First Amendment does exist and that we 
must adhere to some of the standards that have been accepted by 
our court system, in this instance, the Miller v. California 
case.
    Having had it struck out in the case of the Supreme Court, 
I'd like to make note of this. In sum, it says: 2256(8)(b) 
covers material beyond the categories recognized in Ferber and 
Miller. And the reasons the Government offers in support of 
limiting the freedom of speech have no jurisdiction in our 
precedents or in the law of the First Amendment.
    And so I would ask that my colleagues look at this so that 
we can truly get a bill that is going to respond to the key 
element. Again, I believe it is the issue of pornography and 
children. The Court has already made its position known. And I 
ask my colleagues to support this amendment.
    At this time, I yield back.
    Chairman Sensenbrenner. The gentleman Texas, Mr. Smith.
    Mr. Smith. Mr. Chairman, I oppose the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, I know the gentlewoman from Texas 
has a special interest in this legislation, since she's an 
original co-sponsor, which I appreciate. But I still have to 
oppose this amendment simply because the Supreme Court has 
determined that child pornography does not have to be obscene. 
And this amendment, unfortunately, would ignore that decision.
    This amendment incorporates the three-pronged test for 
obscenity established by the Supreme Court in Miller v. 
California and thus would limit the prohibition on virtual 
child pornography only to obscene materials. This defeats the 
whole purpose of the bill, which is to narrow the definition of 
computer-generated child pornography so that it remains covered 
by prohibitions of child pornography laws.
    Without the bill, the tougher obscenity standard would have 
to be met. Obscenity and child pornography are two separate 
exceptions to the First Amendment protection afforded 
pornography. These exceptions should not be confused. The 
compelling State interest to protect children is overwhelming, 
and part of that interest is to prosecute those who exploit 
children.
    Section 2 of the bill was drafted to salvage as much as 
possible the existing child pornography laws without having to 
limit them to obscene materials. Prosecutors need the full 
range of tools to combat this horrific crime. The Supreme Court 
has not held that prosecutors are limited to relying on the 
obscenity laws, and we should not handicap prosecutors in that 
way.
    In summary, Mr. Chairman, the amendment would legalize non-
obscene child pornography, and I believe strongly that we must 
not legalize not-obscene child pornography. And for those 
reasons, I oppose the amendment and urge my colleagues to 
oppose it as well.
    And I'll yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Jackson Lee 
amendment to the Subcommittee amendment in the nature of a 
substitute.
    Mr. Scott. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner.
    The gentleman from Virginia is recognized.
    Mr. Scott. Mr. Chairman, what we are talking about is the 
very essence of the legislation. The Supreme Court struck out 
the idea that you could declare child pornography as obscene. 
They said you could criminalize child pornography if you use 
live children, but made it clear every different kind of way 
they could that you could not criminalize child pornography 
that did not use real children if it was not otherwise obscene.
    Now, this language--I'm not sure that it gets in the right 
section, but I mean this would make it clearly constitutional 
because the language in the amendment is essentially the 
language determining--that you have to consider whether or not 
something is obscene.
    But the idea that we're going to pass this legislation 
doing exactly what the Supreme Court said you couldn't do is an 
insult to the Judiciary Committee.
    I yield to the gentlelady from Texas.
    Ms. Jackson Lee. I thank the gentleman very much.
    And I would like to acknowledge Mr. Smith's comment. You 
are correct. I have a very special interest in this 
legislation. I want it to withstand constitutional muster. I am 
an original co-sponsor, because I believe in attacking at the 
heart of the problem, which is pornographic materials directed 
toward our children.
    At the same time, I would ask my good friend and colleague 
to, if you would, digest and analyze the comments of the 
Ranking Member and, as well, the intent of this amendment. 
Obviously, I will look to any modifications as to its location.
    But I think where we're trying to go as we move this bill 
out of Committee is to make it, if you will, subject to 
constitutional muster in the right way and that we go after the 
heart of the problem.
    We're always going to come up against the issues of 
literary content, artistic content, political content, or 
scientific content, using such depictions for these reasons. 
And there will always be the ability of someone to raise this 
and bring this to the attention of the courts on the basis of: 
``I was using this for scientific reasons and political 
reasons,'' ``I was using this for artistic reasons,'' et 
cetera.
    I believe we would do well in the Judiciary Committee to 
respect the three branches of Government, attempt to pass 
legislation that will reach constitutional muster. And I would 
ask my colleagues to support this.
    And I would yield back to the distinguished gentleman from 
Virginia.
    Do you need the time?
    With that, Mr. Chairman, I'll yield back my time.
    Chairman Sensenbrenner. The gentleman from Virginia?
    The question is on the Jackson Lee amendment to the 
Subcommittee amendment in the nature of a substitute.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment to the Subcommittee amendment is not agreed to.
    Are there further amendments?
    If not, the question is on the Subcommittee amendment in 
the nature of a substitute as amended.
    Those in favor will say aye.
    Opposed, no.
    The aye appears to have it. [Laughter.]
    The aye has it.
    Mr. Smith. Mr. Chairman, I'd like a recorded vote at the 
final passage.
    Chairman Sensenbrenner. Well, let's see if we have a 
reporting quorum. A reporting quorum is present. The question 
now occurs on the motion to report the bill H.R. 4623 
favorably.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it.
    The gentleman from Texas?
    Mr. Smith. Mr. Chairman, I'd like a recorded vote, please.
    Chairman Sensenbrenner. A recorded vote is requested.
    Those in favor of reporting the bill favorably will, as 
your names are called, answer aye. Those opposed, no.
    And the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their vote?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 16 ayes and two nays.
    Chairman Sensenbrenner. And the motion--a reporting quorum 
is not present.
    Without objection, the vote will be vitiated. And without 
objection, the previous question on the motion to report 
favorably is ordered. And we will take it up when a reporting 
quorum appears.

           *         *         *         *         *

    The Committee met, pursuant to notice, at 10:29 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    [Intervening business.]
    The unfinished business is the motion to report the bill 
H.R. 4623, upon which the previous question had been ordered. 
The Chair notes the presence of a reporting quorum.
    And for the information of the Members, H.R. 4623 is the 
``Child Obscenity and Pornography Prevention Act of 2002.''
    Those in favor of the motion to report the bill favorably 
will say aye.
    Mr. Smith. Mr. Chairman, I'd like a recorded vote on that 
as well.
    Chairman Sensenbrenner. Okay.
    Opposed, no.
    The ayes appear to have it. The ayes have it. A recorded 
vote is requested.
    Those in favor of reporting H.R. 4623 favorably will, as 
your names called, answer aye. Those opposed, no. And the clerk 
will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye.
    Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye.
    Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. No.
    The Clerk. Mr. Frank, no.
    Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their votes?
    The gentleman from California, Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    The gentleman from North Carolina, Mr. Coble.
    Mr. Coble.
    The Clerk. Mr. Coble, aye.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 22 ayes and three nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendments heretofore adopted. 
Without objection, the Chairman is authorized to move to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And all Members will be given 2 days, as provided by House 
rules, in which to submit additional, dissenting, supplemental, 
or minority views.
                            Dissenting Views

    H. R. 4623, the ``Child Obscenity and Pornography 
Prevention Act of 2002'' is a hasty attempt drafted by the 
Department of Justice to override the United States Supreme 
Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 
____ (2002). While the intentions of the authors may be good, 
the bill is fatally flawed.
    H.R. 4623 seeks to ban ``virtual child pornography.'' It 
not only defines child pornography as virtual child pornography 
that is ``indistinguishable'' from real child pornography, but 
makes even possession of an image that is ``indistinguishable'' 
a crime.
    Child pornography is despicable and illegal, and must be 
banned and prosecuted. However, pornography that does not 
involve a child is just that--pornography, which, if not 
obscene, is not illegal. To constitute ``child pornography,'' a 
real child must be involved. Computer generated images 
depicting child-like characters which do not involve real 
children do not constitute child pornography any more than a 
movie with a 22 year old actor who plays, and looks, the role 
of a 15 year old engaging in explicit sexual activities.
    Pornography, computer generated or not, which is produced 
without using real children, and is not otherwise obscene, is 
protected under the First Amendment. H.R. 4623, like the Child 
Pornography Prevention Act (CPPA) struck down in Ashcroft v. 
Free Speech Coalition, attempts to ban this protected material, 
and therefore is likely to meet the same fate. The fatal flaw 
in the (CPPA) was its criminalization of speech that was 
neither ``obscene'' under Miller v. California, nor ``child 
pornography'' involving the abuse of real children under New 
York v. Ferber. H. R. 4623 repeats that mistake. Like the CPPA, 
this bill would not only criminalize speech that is not 
obscene, but also speech that has redeeming literary, artistic, 
political or other social value. For example, the bill would 
punish therapists and academic researchers who used computer-
generated images in their research, and film makers who create 
explicit anti-child abuse documentaries.
    H.R. 4623 creates a strict liability offense. Under the 
bill, prohibited images may not be possessed for any reason, 
however legitimate. Therefore, any scholarly research that may 
be used to verify or refute the underlying assumptions of the 
bill is rendered impossible.
    Proponents of the bill believe the court left open the 
question of whether the government can criminalize computer 
generated images that are not obscene and do not involve real 
children. Obscene images can always be prosecuted, but the 
Court clearly said that the government cannot criminalize 
images which are not obscene unless the product involved actual 
children. In striking down the offending portions of CPPA and 
upholding its decision in New York v. Ferber, 458 U.S. (1982), 
the court stated:

          ``In contrast to the speech in Ferber, speech that 
        itself is the record of sexual abuse,the CPPA prohibits 
        speech that records no crime and creates no victims by 
        its production. Virtual child pornography is not 
        `intrinsically related' to the sexual abuse of 
        children, as were the materials in Ferber, at 759.'' 
        (page 12)

          ``Ferber, then, not only referred to the distinction 
        between actual and virtual child pornography, it relied 
        on it 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.'' (Page 13)

    Also, in interpreting the case of Osborne v. Ohio, 495 
U.S.103 (1990), the Court stated:

          ``Osborne also noted the State's interest in 
        preventing child pornography from being used as an aid 
        in the solicitation of minors. Id., at 111. The Court, 
        however, anchored its holding in the concern for the 
        participants, those whom it called the ``victims of 
        child pornography.'' Id., at 110. It did not suggest 
        that, absent this concern, other governmental interests 
        would suffice. See infra, at 13-15. (page 12)

          ``The case reaffirmed that where the speech is 
        neither obscene nor the product of sexual abuse, it 
        does not fall outside the protection of the First 
        Amendment. See id.,at 764-765 (`[T ]he distribution of 
        descriptions or other depictions of sexual conduct, not 
        otherwise obscene, which do not involve live 
        performance or photographic or other visual 
        reproduction of live performances, retains First 
        Amendment protection').'' (Page 13)

    Proponents also argue that the Court did not consider the 
harm to real children that will occur when, through 
technological advances, it will become impossible to tell real 
children from ``virtual'' children, thereby allowing harm to 
real children because the government cannot tell the difference 
for purposes of bringing prosecution. The Court clearly did 
consider it and Stated:

          ``The Government next argues that its objective of 
        eliminating the market for pornography produced using 
        real children necessitates a prohibition on virtual 
        images as well. Virtual images, the Government 
        contends, are indistinguishable from real ones; they 
        are part of the same market and are often exchanged. In 
        this way, it is said, virtual images promote the 
        trafficking in works produced through the exploitation 
        of real children. The hypothesis is somewhat 
        implausible. If virtual images were identical to 
        illegal child pornography, the illegal images would be 
        driven from the market by the indistinguishable 
        substitutes. Few pornographers would risk prosecution 
        by abusing real children if fictional, computerized 
        images would suffice.'' (Page 16)

    Nor was the court persuaded by the argument that virtual 
images will make it very difficult for the government to 
prosecute cases. As to this concern, the Court stated the 
following:

          Finally, the Government says that the possibility of 
        producing images by using computer imaging makes it 
        very difficult for it to prosecute those who produce 
        pornography by using real children. Experts, we are 
        told, may have difficulty in saying whether the 
        pictures were made by using real children or by using 
        computer imaging. The necessary solution, the argument 
        runs, is to prohibit both kinds of images. The 
        argument, in essence, is that protected speech may be 
        banned as a means to ban unprotected speech. This 
        analysis turns the First Amendment upside down.

          ``The Government may not suppress lawful speech as 
        the means to suppress unlawful speech.'' (Pages 16-17)

    And, finally, the government suggests that because the 
Court determined that it need not decide whether an affirmative 
defense could save an otherwise unconstitutional statute, it 
left open that possibility. That may be true, but, despite its 
recognition it need not decide the issue of affirmative 
defenses in the case before it, the Court went out of its way 
to make clear how it views such efforts with the following 
language:

          ``To avoid the force of this objection, the 
        Government would have us read the CPPA not as a measure 
        suppressing speech but as a law shifting the burden to 
        the accused to prove the speech is lawful. In this 
        connection, the Government relies on an affirmative 
        defense under the statute, which allows a defendant to 
        avoid conviction for non-possession offenses by showing 
        that the materials were produced using only adults and 
        were not otherwise distributed in a manner conveying 
        the impression that they depicted real children. See 18 
        U.S.C.Sec. 2252A(c).''

          ``The Government raises serious constitutional 
        difficulties by seeking to impose on the defendant the 
        burden of proving his speech is not unlawful. An 
        affirmative defense applies only after prosecution has 
        begun, and the speaker must himself prove, on pain of a 
        felony conviction, that his conduct falls within the 
        affirmative defense. In cases under the CPPA, the 
        evidentiary burden is not trivial. Where the defendant 
        is not the producer of the work, he may have no way of 
        establishing the identity, or even the existence, of 
        the actors. If the evidentiary issue is a serious 
        problem for the Government, as it asserts, it will be 
        at least as difficult for the innocent possessor.'' 
        (Pages 17-18)

    The Ashcroft decision, essentially reiterated the 
principles of Ferber regarding the boundaries for fighting 
child pornography:

        1. Non-obscene descriptions or depictions of sexual 
        conduct that do not involve real children are a form of 
        speech, even if it is despicable speech, protected by 
        the First Amendment. (Reaffirming Ferber.)

        2. The government should focus its efforts on 
        education and on punishment for violations of the law 
        by those who actually harm children in the creation of 
        child pornography rather than on abridgment of the 
        rights of free speech of those who create something 
        from their imagination. Slip Opinion at 7 [Kingsley 
        Int'l Pictures Corp. v. Regents of Univ. of N.Y., 360 
        U.S. 684, 689 (1959)]

        3. The fact that speech may be used to perpetrate a 
        crime, for example, enticement or seduction, is 
        insufficient reason to ban the speech. ``The government 
        may not prohibit speech because it increases the chance 
        an unlawful act will be committed `at some indefinite 
        future time.' '' Slip Opinion at 15 [Hess v. Indiana, 
        414 U.S. 105, 108 (1973) (per curiam)]

        4. ``The Government may not suppress lawful speech as 
        the means to suppress unlawful speech.'' Slip Opinion 
        at 17. Banning protected speech (virtual child porn) in 
        order to ban unprotected speech (child porn using real 
        children) ``turns the First Amendment upside down.'' 
        Id. ``Protected speech does not become unprotected 
        merely because it resembles the latter.'' Id.

                               CONCLUSION

    Because H. R. 4623 repeats the same mistakes condemned in 
Ashcroft v. Free Speech Coalition, it is not likely to be 
upheld.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.