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112th Congress                                            Rept. 112-281
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

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



 
      PROTECTING CHILDREN FROM INTERNET PORNOGRAPHERS ACT OF 2011

                                _______
                                

 November 10, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1981]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1981) to amend title 18, United States Code, with 
respect to child pornography and child exploitation offenses, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     5
Background and Need for the Legislation..........................     5
Hearings.........................................................    21
Committee Consideration..........................................    22
Committee Votes..................................................    22
Committee Oversight Findings.....................................    30
New Budget Authority and Tax Expenditures........................    30
Congressional Budget Office Cost Estimate........................    30
Performance Goals and Objectives.................................    32
Advisory on Earmarks.............................................    32
Section-by-Section Analysis......................................    32
Changes in Existing Law Made by the Bill, as Reported............    35
Dissenting Views.................................................    43

                             The Amendment

    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 ``Protecting Children From Internet 
Pornographers Act of 2011''.

SEC. 2. FINANCIAL FACILITATION OF ACCESS TO CHILD PORNOGRAPHY.

  (a) Offense.--Chapter 95 of title 18, United States Code, is amended 
by adding at the end the following:

``Sec. 1960A. Financial facilitation of access to child pornography

  ``(a) In General.--Whoever knowingly conducts, or attempts or 
conspires to conduct, a financial transaction (as defined in section 
1956(c)) in or affecting interstate or foreign commerce, knowing that 
such transaction will facilitate access to, or the possession of, child 
pornography (as defined in section 2256) shall be fined under this 
title or imprisoned not more than 20 years, or both.
  ``(b) Exclusion From Offense.--This section does not apply to a 
financial transaction conducted by a person in cooperation with, or 
with the consent of, any Federal, State, or local law enforcement 
agency.''.
  (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 95 of title 18, United States Code, is amended by adding at the 
end the following new item:

``1960A. Financial facilitation of access to child pornography.''.

SEC. 3. MONEY LAUNDERING PREDICATE.

  Section 1956(c)(7)(D) of title 18, United States Code, is amended--
          (1) by inserting ``1466A (relating to obscene visual 
        representation of the abuse of children),'' before ``section 
        1708''; and
          (2) by inserting ``1960A (relating to financial facilitation 
        of access to child pornography),'' before ``section 2113''.

SEC. 4. RETENTION OF CERTAIN RECORDS BY ELECTRONIC COMMUNICATION 
                    SERVICE PROVIDERS.

  (a) In General.--Section 2703 of title 18, United States Code, is 
amended by adding at the end the following:
  ``(h) Retention of Certain Records.--
          ``(1) A commercial provider of an electronic communication 
        service shall retain for a period of at least one year a log of 
        the temporarily assigned network addresses the provider assigns 
        to a subscriber to or customer of such service that enables the 
        identification of the corresponding customer or subscriber 
        information under subsection (c)(2) of this section.
          ``(2) Access to a record or information required to be 
        retained under this subsection may not be compelled by any 
        person or other entity that is not a governmental entity.
          ``(3) The Attorney General shall make a study to determine 
        the costs associated with compliance by providers with the 
        requirement of paragraph (1). Such study shall include an 
        assessment of all the types of costs, including for hardware, 
        software, and personnel that are involved. Not later than 2 
        years after the date of the enactment of this paragraph, the 
        Attorney General shall report to Congress the results of that 
        study.
          ``(4) In this subsection--
                  ``(A) the term `commercial provider' means a provider 
                of electronic communication service that offers 
                Internet access capability for a fee to the public or 
                to such classes of users as to be effectively available 
                to the public, regardless of the facilities used; and
                  ``(B) the term `Internet' has the same meaning given 
                that term in section 230(f) of the Communications Act 
                of 1934.''.
  (b) Sense of Congress.--It is the sense of Congress--
          (1) to encourage electronic communication service providers 
        to give prompt notice to their customers in the event of a 
        breach of the data retained pursuant to section 2703(h) of 
        title 18 of the United States Code, in order that those 
        effected can take the necessary steps to protect themselves 
        from potential misuse of private information; and
          (2) that records retained pursuant to section 2703(h) of 
        title 18, United States Code, should be stored securely to 
        protect customer privacy and prevent against breaches of the 
        records.
  (c) Transition Rule.--The amendment made by this section shall not 
apply until 180 days after the date of the enactment of this Act to a 
provider of an electronic communications service that does not, on that 
date of enactment, have in effect a system of retention of records that 
complies with the requirements of that amendment.
  (d) Study.--
          (1) The Attorney General, not later than 2 years after the 
        date of the enactment of this Act, shall complete a study of 
        providers affected by section 2703(h) of title 18, United 
        States Code.
          (2) Such study shall include--
                  (A) the privacy standards and considerations 
                implemented by those providers as they comply with the 
                requirements of section 2703(h); and
                  (B) the frequency of any reported breaches of data 
                retained pursuant to section 2703(h).
          (3) The Attorney General shall, upon the completion of the 
        study, report the results of the study to Congress.

SEC. 5. NO CAUSE OF ACTION AGAINST A PROVIDER DISCLOSING INFORMATION 
                    UNDER THIS CHAPTER.

  Section 2703(e) of title 18, United States Code, is amended by 
inserting ``retaining records,'' after ``other specified persons for''.

SEC. 6. GOOD FAITH RELIANCE ON REQUIREMENT.

  Section 2707(e)(1) of title 18, United States Code, is amended by 
inserting ``, or the requirement to retain records under section 
2703(h),'' after ``section 2703(f)''.

SEC. 7. SUBPOENA AUTHORITY.

  Section 566(e)(1) of title 28, United States Code, is amended--
          (1) in subparagraph (A), by striking ``and'' at the end;
          (2) in subparagraph (B), by striking the period at the end 
        and inserting ``; and''; and
          (3) by adding at the end the following:
          ``(C) issue administrative subpoenas in accordance with 
        section 3486 of title 18, solely for the purpose of 
        investigating unregistered sex offenders (as defined in such 
        section 3486).''.

SEC. 8. PROTECTION OF CHILD WITNESSES.

  Section 1514 of title 18, United States Code, is amended--
          (1) in subsection (b)--
                  (A) in paragraph (1)--
                          (i) by inserting ``or its own motion,'' after 
                        ``attorney for the Government,''; and
                          (ii) by inserting ``or investigation'' after 
                        ``Federal criminal case'' each place it 
                        appears;
                  (B) by redesignating paragraphs (2), (3), and (4) as 
                paragraphs (3), (4), and (5), respectively;
                  (C) by inserting after paragraph (1) the following:
  ``(2) In the case of a minor witness or victim, the court shall issue 
a protective order prohibiting harassment or intimidation of the minor 
victim or witness if the court finds evidence that the conduct at issue 
is reasonably likely to adversely affect the willingness of the minor 
witness or victim to testify or otherwise participate in the Federal 
criminal case or investigation. Any hearing regarding a protective 
order under this paragraph shall be conducted in accordance with 
paragraphs (1) and (3), except that the court may issue an ex parte 
emergency protective order in advance of a hearing if exigent 
circumstances are present. If such an ex parte order is applied for or 
issued, the court shall hold a hearing not later than 14 days after the 
date such order was applied for or is issued.'';
                  (D) in paragraph (4), as so redesignated, by striking 
                ``(and not by reference to the complaint or other 
                document)''; and
                  (E) in paragraph (5), as so redesignated, in the 
                second sentence, by inserting before the period at the 
                end the following: ``, except that in the case of a 
                minor victim or witness, the court may order that such 
                protective order expires on the later of 3 years after 
                the date of issuance or the date of the eighteenth 
                birthday of that minor victim or witness''; and
          (2) by striking subsection (c) and inserting the following:
  ``(c) Whoever knowingly and intentionally violates or attempts to 
violate an order issued under this section shall be fined under this 
title, imprisoned not more than 5 years, or both.
  ``(d)(1) As used in this section--
          ``(A) the term `course of conduct' means a series of acts 
        over a period of time, however short, indicating a continuity 
        of purpose;
          ``(B) the term `harassment' means a serious act or course of 
        conduct directed at a specific person that--
                  ``(i) causes substantial emotional distress in such 
                person; and
                  ``(ii) serves no legitimate purpose;
          ``(C) the term `immediate family member' has the meaning 
        given that term in section 115 and includes grandchildren;
          ``(D) the term `intimidation' means a serious act or course 
        of conduct directed at a specific person that--
                  ``(i) causes fear or apprehension in such person; and
                  ``(ii) serves no legitimate purpose;
          ``(E) the term `restricted personal information' has the 
        meaning give that term in section 119;
          ``(F) the term `serious act' means a single act of 
        threatening, retaliatory, harassing, or violent conduct that is 
        reasonably likely to influence the willingness of a victim or 
        witness to testify or participate in a Federal criminal case or 
        investigation; and
          ``(G) the term `specific person' means a victim or witness in 
        a Federal criminal case or investigation, and includes an 
        immediate family member of such a victim or witness.
  ``(2) For purposes of subparagraphs (B)(ii) and (D)(ii) of paragraph 
(1), a court shall presume, subject to rebuttal by the person, that the 
distribution or publication using the Internet of a photograph of, or 
restricted personal information regarding, a specific person serves no 
legitimate purpose, unless that use is authorized by that specific 
person, is for news reporting purposes, is designed to locate that 
specific person (who has been reported to law enforcement as a missing 
person), or is part of a government-authorized effort to locate a 
fugitive or person of interest in a criminal, antiterrorism, or 
national security investigation.''.

SEC. 9. SENTENCING GUIDELINES.

  Pursuant to its authority under section 994 of title 28, United 
States Code, and in accordance with this section, the United States 
Sentencing Commission shall review and, if appropriate, amend the 
Federal sentencing guidelines and policy statements to ensure--
          (1) that the guidelines provide an additional penalty 
        increase above the sentence otherwise applicable in Part J of 
        Chapter 2 of the Guidelines Manual if the defendant was 
        convicted of a violation of section 1591 of title 18, United 
        States Code, or chapters 109A, 109B, 110, or 117 of title 18, 
        United States Code; and
          (2) if the offense described in paragraph (1) involved 
        causing or threatening to cause physical injury to a person 
        under 18 years of age, in order to obstruct the administration 
        of justice, an additional penalty increase above the sentence 
        otherwise applicable in Part J of Chapter 2 of the Guidelines 
        Manual.

SEC. 10. ENHANCED PENALTIES FOR POSSESSION OF CHILD PORNOGRAPHY.

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

SEC. 11. ADMINISTRATIVE SUBPOENAS.

  (a) In General.--Section 3486(a)(1) of title 18, United States Code, 
is amended--
          (1) in subparagraph (A)--
                  (A) in clause (i), by striking ``or'' at the end;
                  (B) by redesignating clause (ii) as clause (iii); and
                  (C) by inserting after clause (i) the following:
          ``(ii) an unregistered sex offender conducted by the United 
        States Marshals Service, the Director of the United States 
        Marshals Service; or''; and
          (2) in subparagraph (D)--
                  (A) by striking ``paragraph, the term'' and inserting 
                the following: ``paragraph--
          ``(i) the term'';
                  (B) by striking the period at the end and inserting 
                ``; and''; and
                  (C) by adding at the end the following:
          ``(ii) the term `sex offender' means an individual required 
        to register under the Sex Offender Registration and 
        Notification Act (42 U.S.C. 16901 et seq.).''.
  (b) Technical and Conforming Amendments.--Section 3486(a) of title 
18, United States Code, is amended--
          (1) in paragraph (6)(A), by striking ``United State'' and 
        inserting ``United States'';
          (2) in paragraph (9), by striking ``(1)(A)(ii)'' and 
        inserting ``(1)(A)(iii)''; and
          (3) in paragraph (10), by striking ``paragraph (1)(A)(ii)'' 
        and inserting ``paragraph (1)(A)(iii)''.

                          Purpose and Summary

    H.R. 1981 provides additional investigative and 
prosecutorial tools and enhanced penalties to combat the 
proliferation of Internet child pornography and child 
exploitation offenses and other Internet-based crimes.

                Background and Need for the Legislation

I. THE PROLIFERATION OF CHILD PORNOGRAPHY AND CHILD EXPLOITATION ON THE 
                                INTERNET

    According to the Justice Department, trafficking of child 
pornography images was almost completely eradicated in America 
by the mid-1980's. Purchasing or trading child pornography 
images was risky and almost impossible to undertake 
anonymously.
    The advent of the Internet reversed this accomplishment. 
Internet child pornography is among one of the fastest growing 
crimes in America, increasing at an average of 150% per year. 
These disturbing images litter the Internet and pedophiles can 
purchase, view, or exchange this material with virtual 
anonymity.
    The Department reports that ``the expansion of the Internet 
has led to an explosion in the market for child pornography, 
making it easier to create, access, and distribute these images 
of abuse. . . . The child victims are first sexually assaulted 
in order to produce the vile, and often violent, images. They 
are then victimized again when these images of their sexual 
assault are traded over the Internet in massive numbers by 
like-minded people across the globe.''\1\
---------------------------------------------------------------------------
    \1\The National Strategy for Child Exploitation Prevention and 
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010, 
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf (hereinafter National Strategy).
---------------------------------------------------------------------------
    The National Center for Missing and Exploited Children 
(NCMEC) created the CyberTipline 13 years ago. To date, more 
than 51 million child pornography images and videos have been 
reviewed by the analysts in NCMEC's Child Victim Identification 
Program.\2\ As NCMEC's president and CEO, Ernie Allen, 
explained at a hearing before the Crime, Terrorism and Homeland 
Security Subcommittee on July 12, 2011, ``these images are 
crime scene photos. According to law enforcement data, 19% of 
identified offenders in a survey had images of children younger 
than 3 years old; 39% had images of children younger than 6 
years old; and 83% had images of children younger than 12 years 
old. Reports to the CyberTipline include images of sexual 
assault of toddlers and even infants.''\3\
---------------------------------------------------------------------------
    \2\Testimony of Mr. Ernie Allen, President and CEO of the National 
Center for Missing and Exploited Children, Hearing on H.R. 1981 before 
the Subcommittee on Crime, Terrorism, and Homeland Security, Committee 
on the Judiciary, U.S. House of Representatives, 112th Congress, July 
12, 2011, at 2.
    \3\Id. at 3.
---------------------------------------------------------------------------
    A recent Federal investigation demonstrates the ease with 
which pedophiles can exchange pornography via the Internet and 
the horrific nature of this crime. Operation Delego, initiated 
by Immigration and Customs Enforcement (ICE) agents, uncovered 
an international child pornography ring that operated an 
Internet forum known as ``Dreamboard.''\4\ The forum was based 
in the United States, but had nearly 600 participants who 
spanned across five continents.
---------------------------------------------------------------------------
    \4\Terry Frieden, 72 charged in online global child porn ring, Cnn, 
Aug. 3, 2011, available at http://articles.cnn.com/2011-08-03/justice/
us.child.porn.ring_1_sexual-abuse-bulletin-board-images-and-
videos?_s=PM:CRIME.
---------------------------------------------------------------------------
    U.S. Attorney General Eric Holder described that ``[i]n 
order to become part of the Dreamboard community, prospective 
members were required to upload pornography portraying children 
under 12 years of age or younger . . . Once given access, the 
participants had to continually upload images of child sexual 
abuse in order to maintain membership. The more content they 
provided, the more content they were allowed to access. Members 
who created and shared images and videos of themselves 
molesting children received elevated status and greater access. 
. . . Some of the children featured in these images and videos 
were just infants and in many cases, the children being 
victimized were in obvious and also intentional pain, even in 
distress and crying, just as the rules for one area of the 
bulletin board mandated. They had to be in distress and 
crying.''\5\ To date, roughly 100 members of Dreamboard have 
been arrested in the United States and abroad. Nearly 500 
members, including the top administrator of the forum, remain 
at large and free to continue abusing children.\6\
---------------------------------------------------------------------------
    \5\Id.
    \6\Staff Briefing by Officials from U.S. Immigration and Customs 
Enforcement, U.S. Dept. of Homeland Security, Aug. 16, 2011.
---------------------------------------------------------------------------

        II. FINANCIAL FACILITATION OF INTERNET CHILD PORNOGRAPHY

    Internet child pornography has become a commercial 
enterprise worth billions of dollars annually.\7\ In April 
2007, executives from the online payment service E-Gold were 
indicted for permitting known child pornographers to use their 
service to complete illegal money transfers.\8\ The 
circumstances surrounding the E-Gold indictment typify the 
reasons why many online payment services, which offer anonymity 
and lack thorough regulation, are attractive to money 
launderers and criminals.
---------------------------------------------------------------------------
    \7\Jelani Jefferson Exum, Making the Punishment Fit the (Computer) 
Crime: Rebooting Notions of Possession for the Federal Sentencing of 
Child Pornography Offenses, XVI RICH. J.L. & TECH. 8, p.6 (2010), 
http://jolt.richmond.edu/v16i3/article8.pdf.
    \8\Digital Currency Business E-Gold Indicted For Money Laundering 
and Illegal Money Transmitting, U.S. Dept. of Justice, Apr. 27, 2007, 
available at http://www.justice.gov/criminal/cybercrime/
egoldIndict.htm.
---------------------------------------------------------------------------
    Unlike banks, which must follow national and international 
banking regulations, online payment services bypass compliance 
rules that require identification of the payer and payee.\9\ 
For example, individuals using the E-Gold payment system were 
required to provide only an email address. Account holders were 
then free to access their accounts over the Internet and 
conduct anonymous transactions with parties around the 
world.\10\
---------------------------------------------------------------------------
    \9\Trends in Migration, Hosting and Payment for Commercial Child 
Pornography Websites, Financial Coalition Against Child Pornography 
(2008), available at http://www.
missingkids.com/en_US/documents/FCACPTechnologyChallengesWhitePaper5-
08.pdf.
    \10\See supra note 8.
---------------------------------------------------------------------------
    E-Gold also seemed to encourage illegal-activity in other 
ways. The payment service's user agreement did not prohibit 
criminal activity and E-Gold only assigned one employee to 
monitor accounts for indications of criminal activity. When the 
criminal activity of E-Gold users was discovered, E-Gold 
advised the users to relocate their funds to different E-Gold 
accounts.\11\
---------------------------------------------------------------------------
    \11\Brian Krebs, U.S.: Online Payment Network Abetted Fraud, Child 
Pornography, Wash. Post, May 01, 2007, available at http://
www.washingtonpost.com/wp-dyn/content/article/2007/05/01/
AR2007050101291_pf.html.
---------------------------------------------------------------------------
    As traditional credit card and payment services such as 
MasterCard, Visa, American Express, and Bank of America take 
steps to ``virtually eliminate'' their use in child pornography 
transactions, child pornographers will increasingly rely on 
online payment systems.\12\
---------------------------------------------------------------------------
    \12\Ernie Allen, In Child Pornography, Fight Harder, Christian Sci. 
Monitor, Nov. 26, 2007, available at http://www.csmonitor.com/2007/
1126/p09s01-coop.html.
---------------------------------------------------------------------------
    Mr. Allen of NCMEC testified that ``law enforcement 
investigations have found that organized crime networks operate 
some of these enterprises. One such case was that of the Regpay 
Company, a major Internet processor of subscriptions for third-
party commercial child pornography websites. The site was 
managed in Belarus, the credit card payments were processed by 
a company in Florida, the money was deposited in a bank in 
Latvia, and the majority of the almost 300,000 credit card 
transactions on the sites were from Americans.''\13\
---------------------------------------------------------------------------
    \13\Supra note 2 at 3.
---------------------------------------------------------------------------
    In 2006, NCMEC created the Financial Coalition Against 
Child Pornography. ``The Financial Coalition is made up of 
leading banks, credit card companies, electronic payment 
networks, third party payments companies and Internet services 
companies. Its members comprise nearly 90% of the U.S. payments 
industry.''\14\ The Coalition's goals are to ``increase the 
risk of running a child pornography enterprise and to eliminate 
the profitability.''\15\
---------------------------------------------------------------------------
    \14\Id. at 4.
    \15\Id.
---------------------------------------------------------------------------
    H.R. 1981 targets the commercial Internet child pornography 
industry by establishing a new Federal offense for the 
financial facilitation of Internet child pornography. The 
offense makes it a crime punishable by fine or up to 20 years 
in prison to conduct a financial transaction knowing that it 
will facilitate access to child pornography. To encourage the 
continued efforts of NCMEC's Financial Coalition, H.R. 1981 
exempts from the new offense those transactions conducted in 
cooperation with law enforcement agencies.

   III. UNIFORM RETENTION OF CERTAIN DATA IS PARAMOUNT TO COMBATING 
         INTERNET CHILD PORNOGRAPHY AND OTHER INTERNET CRIMES.

    The Internet has revolutionized modern-day commerce and 
communications. Individuals can transmit emails in a split 
second, download movies and TV shows to their computers, or 
purchase a plane ticket--all thanks to the Internet. The 
Internet has also revolutionized modern-day crime and crime 
fighting. Today, the Internet is used to facilitate a myriad of 
criminal enterprises, including drug trafficking, terrorism, 
cybercrime, fraud, human trafficking, and child pornography and 
exploitation.
    America's communication systems are, for the most part, 
privately owned and operated. Telecommunications companies own 
and maintain the vast fiber optic, cable, and satellite 
networks that facilitate all landline and cellular telephone 
calls--including Voice over Internet Protocols (VOIP), email, 
instant messaging, chat rooms, bulletin boards, and the ever-
expanding Internet. As a result, law enforcement agents are 
dependent upon these companies to store certain customer and 
transmission information and, when appropriate, disclose it to 
investigators.
    The Internet is an ideal place to engage in criminal 
activity. It allows for almost instantaneous transmission of 
information and affords criminals a great deal of anonymity. 
The old days of police officers patrolling the streets are, to 
a great extent, gone. Now, law enforcement officials must 
patrol the Internet for crime.
    When investigators encounter criminal activity on the 
Internet, such as a website peddling pain killers without a 
prescription or a chat room for pedophiles to exchange child 
pornography images, they are often unable to identify the 
perpetrators. Criminals use fake email addresses or log in 
names to disguise their true identities. What investigators do 
find is a numerical code, known as an Internet Protocol (IP) 
address, which is assigned to the person by an Internet 
provider as a way of connecting them to the Internet or 
transmitting their emails.
    Often the only mechanism for identifying criminals on the 
Internet is for investigators to trace the IP address back to 
the Internet provider, who can link the IP address to a 
customer and provide investigators the criminal's true 
identity. Law enforcement agents, through a subpoena, will 
request from the provider the name and address of the user of 
the IP address. However, ISPs regularly purge these records--
sometimes within a matter of days or weeks--making it 
impossible for investigators to identify the criminal. Without 
this information, the investigation ends and the criminal 
remains at large.
    Opponents of data retention have adopted the odd refrain 
that retaining IP addresses will do nothing to help combat the 
proliferation of child pornography on the Internet or other 
Internet crimes.\16\ This rhetoric is resoundingly rejected by 
the Justice Department, the FBI, and other law enforcement 
entities.
---------------------------------------------------------------------------
    \16\See, e.g., Remarks of Rep. Conyers, Markup of H.R. 1981, House 
Committee on the Judiciary, July 28, 2011 at 60.
---------------------------------------------------------------------------
    Both Democratic and Republican Administrations have been 
calling on Internet providers to retain information for a 
decade. In 1999, then-Deputy Attorney General Eric Holder said 
that ``certain data must be retained by ISPs for reasonable 
periods of time so that it can be accessible to law 
enforcement.''\17\ Attorney General Alberto Gonzales told the 
Senate Banking Committee in 2006: ``This is a problem that 
requires Federal legislation.'' ``We need information. 
Information that helps us make cases.''\18\
---------------------------------------------------------------------------
    \17\Remarks of U.S. Deputy Attorney General Eric Holder, 
International Conference on ``Combating Child Pornography on the 
Internet,'' Vienna, Austria, Sept. 29, 1999, available at http://
www.justice.gov/criminal/cybercrime/dagceos.html.
    \18\Testimony of Attorney General Alberto R. Gonzales, Hearing on 
the Sexual Exploitation of Children on the Internet before the Senate 
Committee on Banking, Housing, and Urban Affairs, United States Senate, 
109th Congress, Sept. 19, 2006.
---------------------------------------------------------------------------
    FBI Director Robert S. Mueller told the House Judiciary 
Committee in April 2008, ``It's important that we have access 
to the records, and record retention by ISPs would be 
tremendously helpful in giving us the historical basis to make 
a case in a number of these child predators who utilize the 
Internet to either push their pornography or to lure persons in 
order to meet them.''\19\ The FBI has identified this matter as 
one of its top legislative priorities.
---------------------------------------------------------------------------
    \19\Testimony of FBI Director Robert S. Mueller, III, Hearing on 
the Oversight of the Federal Bureau of Investigation before the 
Committee on the Judiciary, United States House of Representatives, 
110th Congress, Apr. 23, 2008.
---------------------------------------------------------------------------
    The International Association of Chiefs of Police (IACP) 
adopted a resolution on October 17, 2006 expressing its 
``support for data retention in aid of the investigation of 
crimes facilitated or committed through the use of Internet and 
telephony-based communication services.'' Among other things, 
the resolution declared that ``the failure of the Internet 
access provider industry to retain subscriber information and 
source or destination information for any uniform, predictable, 
reasonable period has resulted in the absence of data, which 
has become a significant hindrance and even an obstacle in 
certain investigations, such as computer intrusion 
investigations and child obscenity and exploitation 
investigations, although law enforcement has generally acted 
expeditiously in processing lawful requests to Internet 
providers.''\20\
---------------------------------------------------------------------------
    \20\International Association of Chiefs of Police, Resolution in 
Support for Data Retention in Aid of the Investigation of Crimes 
Facilitated or Committed Through the Use of the Internet and Telephony-
Based Communication Services, Adopted at the 113th Annual Conference, 
Oct. 17, 2006., available at: http://www.iacp.org/resolution/
index.cfm?fa=dis_public_view&
resolution_id=294&CFID;=70738225&CFTOKEN;=44837577.
---------------------------------------------------------------------------
    In January 2011, the Justice Department testified before 
this Committee that ``the problem of investigations being 
stymied by a lack of data retention is growing worse. One mid-
size cell phone company does not retain any records, and others 
are moving in that direction. A cable Internet provider does 
not keep track of the Internet protocol addresses it assigns to 
customers, at all. Another keeps them for only 7 days--often, 
citizens don't even bring an Internet crime to law 
enforcement's attention that quickly. These practices thwart 
law enforcement's ability to protect the public. When 
investigators need records to investigate a drug dealer's 
communications, or to investigate a harassing phone call, 
records are simply unavailable.''\21\
---------------------------------------------------------------------------
    \21\Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney 
General, Criminal Division, U.S. Dept. of Justice, Hearing on ``Data 
Retention as a Tool for Investigating Internet Child Pornography and 
Other Internet Crimes'' before the Subcommittee on Crime, Terrorism, 
and Homeland Security, Committee on the Judiciary, U.S. House of 
Representatives, 112th Congress, Jan. 25, 2011 at 3.
---------------------------------------------------------------------------
A. LH.R. 1981 Standardizes Current Data Retention Practices
    H.R. 1981 brings uniformity to the existing data retention 
practices of domestic Internet providers. ``Most responsible 
providers are already collecting the data that is most relevant 
to criminal and national security-related investigations. In 
many cases, they have to collect it in order to provide service 
to begin with. In other cases, they collect it for the 
company's security, or to research how their service is being 
used. They simply do not retain that data for periods that are 
sufficient to meet the needs of public safety.''\22\
---------------------------------------------------------------------------
    \22\Id. at 6.
---------------------------------------------------------------------------
    Current law does not require Internet providers to retain 
the records of the IP addresses they assign to their customers. 
In order to accomplish uniform retention of certain data by 
providers, H.R. 1981 amends an existing law known as the Stored 
Communications Act (SCA).\23\ The SCA was enacted in 1986 as a 
part of the larger Electronic Communication Privacy Act or 
ECPA. ECPA provides a statutory framework for the types of 
information law enforcement agents are authorized to request 
from cable and telephone providers and the types of disclosures 
these providers must make to investigators.
---------------------------------------------------------------------------
    \23\Electronic Communication Privacy Act, Pub. L. No. 99-508, Title 
II, 18 U.S.C Sec. 2702 et seq., 100 Stat. 1860 (1986).
---------------------------------------------------------------------------
    The SCA requires law enforcement agents to present Internet 
providers with certain types of compulsory process, depending 
upon the type of information requested. For example, if 
investigators wish to access the content of communications, 
such as the ability to listen to a person's phone calls or read 
emails, they must first obtain a warrant. To obtain other types 
of subscriber records that do not contain content, such as IP 
addresses or telephone numbers, agents must serve the provider 
with a subpoena or court order. It is important to note that 
ECPA does not simply apply to Federal law enforcement agencies, 
but to state and local agencies as well.
    An existing SCA provision, 18 U.S.C. 2703(f), requires a 
provider of wire or electronic communication services or a 
remote computing service to preserve certain customer records, 
including IP addresses assigned to the customer, at the request 
of law enforcement for 90 days. Law enforcement can extend this 
request for an additional 90 days. A section 2703(f) request 
functions like a snapshot. Providers preserve what records they 
have in their possession at the time of the request. If they do 
not have the records, they cannot and do not preserve them.
    This is where section 2703(f) falls short. Because 
providers either do not retain IP address-assignment records or 
do so only for short periods of time, the provider has often 
already purged the records by the time law enforcement has 
discovered the Internet child pornography or other Internet 
crime and made the request under section 2703(f). If the 
records have not been retained, then there is nothing to 
preserve. And, as noted above, if investigators cannot make the 
initial step of identifying the perpetrator, the case runs 
cold.
    The Justice Department testified in January 2011 that the 
section 2703(f) preservation ``approach has had its 
limitations. The investigator must realize he needs the records 
before the provider deletes them, but providers are free to 
delete records after a short period of time, or to destroy them 
immediately. If, as has sometimes been the case, a provider 
deletes the relevant records after just a few seconds or a few 
days, a preservation request can come too late.''\24\
---------------------------------------------------------------------------
    \24\Supra note 21 at 5.
---------------------------------------------------------------------------
    H.R. 1981 adds a new subsection (h) to section 2703 to 
establish a uniform retention period of 1 year for IP address 
assignment records. This provision standardizes the retention 
period for all providers and ensures that these records are 
available for a sufficient period of time. This new requirement 
will dramatically increase the number of Internet crimes in 
which investigators can take the first step in their 
investigation--identifying the suspect.
    H.R. 1981 amends existing provisions in the law that 
provide liability protection to providers (subsection (e) of 
section 2703 and subsection (e) of section 2707) to include 
this new retention requirement in the list of activities for 
which providers are already afforded protection. These current 
liability provisions, even as amended by H.R. 1981, do not 
afford providers absolute immunity. Providers may still be 
liable for knowing or intentional violations of the law.
    H.R. 1981 does not alter the existing SCA structure for the 
compulsory process required to obtain the data. The data 
retained by providers under the new subsection (h) of section 
2703 created by the bill will only be accessible to 
investigators via subpoena or court order.
B. LH.R. 1981 Balances the Needs of Law Enforcement Agencies and 
        Service Providers and the Privacy Interests of Consumers
    Investigators do not become aware of a crime, particularly 
one committed over the Internet, at the moment it happens. When 
dealing with a crime on the Internet, which can easily cross 
state or even international jurisdictions, weeks or months may 
pass before law enforcement discovers or is tipped off to a 
crime. Therefore, the retention period for the new mandate must 
be long enough to serve a legitimate law enforcement function 
while still accommodating providers' cost concerns and limiting 
the potential for a breach of the information.
    H.R. 1981 as introduced imposed an 18-month retention 
period on providers. This period mirrors an existing Federal 
Communications Commission (FCC) regulation that requires 
telephone companies to retain for 18 months telephone toll 
records, including the name, address, and telephone number of 
the caller, plus each telephone number called and the date, 
time, and length of the call.\25\
---------------------------------------------------------------------------
    \25\47 C.F.R. Sec. 42.6 (1986) (``Each carrier that offers or bills 
toll telephone service shall retain for a period of 18 months such 
records as are necessary to provide the following billing information 
about telephone toll calls: the name, address, and telephone number of 
the caller, telephone number called, date, time and length of the call. 
Each carrier shall retain this information for toll calls that it bills 
whether it is billing its own toll service customers for toll calls or 
billing customers for another carrier'').
---------------------------------------------------------------------------
    The 1-year retention period adopted as part of the 
manager's amendment is even shorter than this long-standing FCC 
regulation and accordingly will reduce costs for providers, 
while still assisting law enforcement officers with 
apprehending some of the most dangerous criminals.
    Civil liberties and privacy groups contend that data 
retention threatens consumer privacy. They base this contention 
on the misplaced belief that Internet users are endowed with a 
4th Amendment expectation of privacy in the non-content records 
held by providers. To be sure, the 4th Amendment to the 
Constitution affords individuals a right to be free from 
unreasonable searches and seizures of their persons, houses, 
papers, and effects.\26\ By and large, this protection extends 
to items the person owns or has possession of; for instance--
papers in a file cabinet in one's home or conversations one has 
over the telephone.
---------------------------------------------------------------------------
    \26\U.S. Const. amend IV.
---------------------------------------------------------------------------
    Individuals do not, however, possess ``a reasonable 
expectation of privacy in information disclosed to a third 
party. The Fourth Amendment simply does not apply.''\27\ As the 
Supreme Court noted in United States v. Miller,\28\
---------------------------------------------------------------------------
    \27\Orin S. Kerr, The Case for the Third Party Doctrine, 107 Mich. 
L. Rev. 561, 563 (2009).
    \28\425 U.S. 435 (1976).

        [T]he Fourth Amendment does not prohibit the obtaining 
        of information revealed to a third party and conveyed 
        by him to Government authorities, even if the 
        information is revealed on the assumption that it will 
        be used only for a limited purpose and the confidence 
        placed in the third party will not be betrayed.\29\
---------------------------------------------------------------------------
    \29\Id. at 443.

Therefore, the records maintained by a business, such as 
billing records or the records required to be retained under 
H.R. 1981, are not afforded constitutional protection under the 
4th Amendment.\30\ Indeed, the FCC requirement to retain 
telephone toll records is long-standing and non-controversial. 
The new requirement in H.R. 1981 is no different.
---------------------------------------------------------------------------
    \30\See, generally, supra notes 23 and 27.
---------------------------------------------------------------------------
    In enacting ECPA in 1986, Congress, however, chose to 
impose statutory requirements for the acquisition by the 
government of certain third-party business records, namely the 
requirement that law enforcement officials present a subpoena 
or court order to obtain these records from providers. The 
retention provision of H.R. 1981 in no way disrupts or 
undermines this requirement.
    As the Justice Department explained in January 2011, 
``retained data is held by the provider, not the government. 
Federal law controls when providers can disclose information 
related to communications, and it requires investigators to 
obtain legal process, such as a subpoena or court order, in 
order to compel providers to disclose it.''\31\
---------------------------------------------------------------------------
    \31\Supra note 21 at 6.
---------------------------------------------------------------------------
    Unfortunately, opponents of H.R. 1981 chose to ignore this 
well-established precedent and intentionally mischaracterize 
the bill's retention provision ``requiring ISPs to keep the 
digital data for every American that will be submitted to the 
Federal Government without a warrant whenever we ask.''\32\ 
This characterization is grossly inaccurate. As noted 
previously, many providers already retain this type of data in 
their ordinary course of business as it is their prerogative to 
do so. Law enforcement agencies also currently request and 
receive this data--via compulsory process as required by 
Federal law--in conjunction with their investigations. And, as 
the preceding discussion explains, a subpoena or court order, 
not a warrant, is required to obtain these non-content records.
---------------------------------------------------------------------------
    \32\Remarks of Rep. Lofgren, Markup of H.R. 1981, Committee on the 
Judiciary, 112th Congress, July 28, 2011 at 138-39.
---------------------------------------------------------------------------
    H.R. 1981 provides perhaps the narrowest type of data 
retention possible. The bill does not require the retention of 
any email or telephone content. It only requires providers to 
retain a log of the IP addresses they assign to their 
customers, and the information necessary to link that 
information to a specific customer. There is any number of 
records or other information that this legislation could have 
included in the retention mandate. Rather, H.R. 1981 has a 
singular, narrow focus--retention of records needed to identify 
a criminal suspect.
    Instead of threatening customer privacy, data retention can 
help to protect it. Both Congress and the Administration are 
currently addressing the issue of cyber security. As technology 
advances, so too does the opportunity to exploit it. Whether 
through a cyber attack by a foreign government or a data breach 
by identity thieves, ``data retention can help mitigate those 
threats by enabling effective prosecution of those crimes. 
Cyber criminals, often anonymously, hack into computer networks 
of retailers and financial institutions, stealing millions of 
credit and debit card numbers and other personal 
information.''\33\ It is the retention of IP address 
information that allows law enforcement to identify these 
serious criminals.
---------------------------------------------------------------------------
    \33\Supra note 21 at 6.
---------------------------------------------------------------------------
C. LRetention Should Not be Limited to Only Child Exploitation Offenses
    Opponents of H.R. 1981 contend that data retention 
provision is overly-broad because it does not limit retention 
or access to only Internet child exploitation offenses. This 
criticism is unfounded.
    Some have suggested that the data retention provision 
requires providers to retain only those records pertaining to 
child pornography. Such a limitation is both technologically 
impossible and presents a far greater threat to consumer 
privacy than the standardized retention proposed by H.R. 1981.
    The assignment of IP addresses to customers is 
computerized, instantaneous, and continuous. This is not like 
the early days of telephones, when you called the operator and 
asked to be connected to your friend across town. The Internet 
is operated by a system of computers and networks that transmit 
all of the information via numerical codes.
    Currently, providers retain customer IP address information 
through an automated computerized system. Providers cannot 
discern from the records what function they were used for 
(i.e., sending an email, logging onto a chat room, visiting a 
website) or the subject matter of the Internet transaction.
    To require providers to comb through their IP address 
assignments records in order to identify those records 
connected only to child pornography has four significant flaws: 
(1) providers cannot discern what a customer did on the 
Internet simply by looking at the IP address they assigned to a 
customer to access the Internet; (2) even if they could do 
this, providers would still be required to collect all records 
of all IP address assignments in order to dissect them all and 
determine what to retain; (3) this would require providers to 
investigate the Internet usage of every single customer, 
including the vast majority of law-abiding customers--a much 
more significant privacy intrusion than is contemplated by H.R. 
1981; and (4) such a mandate would be financially untenable for 
the providers--well beyond simply retaining a log of all IP 
address assignments.
    In addition to proposing limiting retention to just child 
pornography investigations, some have also proposed limiting 
law enforcement access to the records to only child pornography 
investigations. This limitation too is flawed--and was rejected 
by the Committee at markup.
    The Internet is not simply home to child pornography 
crimes. It is a virtual world where thousands of crimes are 
carried out every day--including telemarketing fraud, drug 
trafficking, human trafficking, cyber attacks, and terrorist 
plots. The lack of a uniform data retention mandate affects 
these types of investigations as well.
    According to the Justice Department, ``Internet and cell 
phone companies' records are crucial evidence in cases 
involving a wide array of crimes, including child exploitation, 
violent crime, fraud, terrorism, public corruption, drug 
trafficking, online piracy, computer hacking and other privacy 
crimes. What's more, these records are important not only in 
Federal investigations, but also in investigations by state and 
local law enforcement officers.''\34\
---------------------------------------------------------------------------
    \34\Testimony of Mr. Jason Weinstein, Deputy Assistant Attorney 
General, Criminal Division, U.S. Dept. of Justice, Hearing on ``Data 
Retention as a Tool for Investigating Internet Child Pornography and 
Other Internet Crimes'' before the Subcommittee on Crime, Terrorism, 
and Homeland Security, Committee on the Judiciary, U.S. House of 
Representatives, 112th Congress, Jan. 25, 2011 at 2.
---------------------------------------------------------------------------
    The Committee rejected an amendment to limit access to IP 
address data to only certain crimes against children and 
related offenses. Opposition to this limitation was based in 
large part on the belief that subpoenas or court orders served 
on providers as part of a legitimate law enforcement 
investigation should not be precluded simply because they seek 
evidence for an investigation of criminal activity outside this 
narrow category of offenses.\35\
---------------------------------------------------------------------------
    \35\See Remarks of Mr. Sensenbrenner, Markup of H.R. 1981, 
Committee on the Judiciary, U.S. House of Representatives, 112th 
Congress, July 27, 2011 at 78-79.
---------------------------------------------------------------------------
    Limiting the new retention requirement in H.R. 1981 to only 
child pornography cases would significantly lessen what law 
enforcement agents are currently able to obtain from providers. 
Investigators are now able to request records for any crime, so 
long as they comply with the requirements of the law. The laws 
that set forth the types of duties imposed on providers or the 
types of compulsory process required by law enforcement agents 
make no distinction or limitation based on particular types of 
crime. Neither should the data retention mandate in H.R 1981.
D. LTransition to Internet Protocol Version 6 (IPv6)
    Internet Protocol Version 6 (IPv6) is the new standard 
protocol (infrastructure) of the Internet that will transition 
it from IPv4, the current protocol. These protocols provide IP 
addresses to providers. In non-technical terms, IP addresses 
are ``the `phone numbers' for the Internet that are responsible 
for identifying computers and devices so they can 
communicate.''\36\
---------------------------------------------------------------------------
    \36\Microsoft Internet Protocol Version 6, Microsoft TechNet, 
available at http://technet.microsoft.com/en-us/network/bb530961.
---------------------------------------------------------------------------
    The current protocol, IPv4, was developed in the late 
1970's during the developmental years of the Internet.\37\ IPv4 
uses 32-bit addresses and each address is a ``collection of 
four ``dotted quads'' of numbers between 0 and 255, such as 
7.91.248.30.''\38\ ``Each of the numbers is eight binary bits 
long, and there are four of them.''\39\ IPv4 holds a capacity 
about 4 billion unique addresses.\40\ This ``inherently limits 
the number of devices that can be given a unique, globally 
routable address on the Internet.''\41\ At that time, 4 billion 
addresses appeared to be sufficient since no one envisioned the 
future rapid growth of the Internet. However, by the 1990's, 
Internet engineers recognized that the supply of addresses was 
relatively limited compared to likely future demand.\42\ 
Considering that the earth's population is approximately 6.6 
billion people, under the current IPv4 protocol it is not 
possible to give a single IP address to every person on the 
earth.\43\
---------------------------------------------------------------------------
    \37\Robert Cannon, Potential Impacts on Communications From IPv4 
Exhaustion & IPv6 Transition, FCC Staff Working Paper 3 (Dec. 2010), 
available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2010/db1230/DOC-303870A1.pdf.
    \38\Charles Arthur and Josh Halliday, Internet almost out of space 
with allocation of last addresses, The Guardian, (Feb. 1, 2011), 
available at http://www.guardian.co.uk/technology/2011/feb/01/Internet-
last-addresses-ipv4-ipv6
    \39\Id.
    \40\Supra note 37.
    \41\IPV Transition Guidance, Federal CIO Council Architecture and 
Infrastructure Committee, (Feb. 2006).
    \42\Supra note 37.
    \43\Supra note 41.
---------------------------------------------------------------------------
    In response, IPv6 was developed to expand the address space 
on the Internet from 32 to 128 bits.\44\ This increase enables 
essentially an unlimited number of IP addresses (340 trillion 
trillion trillion addresses),\45\ and subsequently an unlimited 
number of devices that can be directly connected to the global 
Internet.\46\ In addition, ``IPv6 is designed to solve many of 
the problems of IPv4, including mobility, autoconfiguration, 
and overall extensibility.''\47\
---------------------------------------------------------------------------
    \44\IPv6 Fact Sheet, ICANN.org, available at http://www.icann.org/
en/announcements/factsheet-ipv6-26oct07.pdf.
    \45\IPv6 Address Added for Root Servers in Root Zone, ICANN, (Feb. 
4, 2008), available at http://www.icann.org/en/announcements/
announcement-04feb08.htm.
    \46\Microsoft Internet Protocol Version 6, Microsoft TechNet, 
available at http://technet.microsoft.com/en-us/network/bb530961.
    \47\Id.
---------------------------------------------------------------------------
    So far, the adoption to IPv6 has been slow and IPv6 traffic 
makes up only about 10% of all Internet traffic.\48\ Due to the 
increase in mobile technological devices, e.g. Smart phones, 
laptops, etc., there has been an increased address consumption 
rate.\49\ In fact on Feb. 3, 2011, the Internet Assigned Number 
Authority (IANA) assigned the last batch of 32 bit address 
blocks to the Regional Internet Registries.\50\ It is expected 
that the U.S. will exhaust its supply of IPv4 addresses by 
early-to mid-2012.\51\
---------------------------------------------------------------------------
    \48\Lagging Security Features, Vulnerabilities Could Hamper 
Transition to a New Network, SECNAP Network Security (Jun 8, 2011), 
available at http://www.secnap.com/support/whitepapers/ipv6-
status.html.
    \49\Carolyn Duffy Marson, Asian Carriers Grab IPv4 Addresses at 
Record Rate, PC World, April 23, 2010, available at http://
www.pcworld.idg.com.au/article/344143/asian_
carriers_grab_ipv4_addresses_record_rate/
    \50\Larry Greenemeier, Out with the Old: As Internet Addresses Run 
Out, the Next Generation Protocols Set Up, Scientific American, Feb 4. 
2011, available at http://www.
scientificamerican.com/article.cfm?id=ipv4-to-ipv6-transition.
    \51\Working Group Launched to Ensure Seamless IPv6 Transition, 
Consumer Electronic Association, Sept. 01, 2011, available at http://
www.ce.org/RSS/default.asp.
---------------------------------------------------------------------------
    The transition of the global Internet from IPv4 to IPv6 
will not be instantaneous, but is expected to span many years. 
Since IPv6 is not backwards compatible, both networks will 
exist for some time. Therefore during this period of 
transition, there will be an issue for how devices on IPv4 and 
IPv6 networks are able to interact with each other.\52\ There 
are two main solutions to solve this issue, ``dual stack'' and 
``tunneling.''
---------------------------------------------------------------------------
    \52\Outcomes of the Consultation held on the Transition from IPv4 
to Ipv6 in Mauritius and the Recommendations Thereon, ICTA of 
Mauritius, July 2011, at 36, available at http://www.icta.mu/documents/
Outcome_%20IPv6_Consultation.pdf.
---------------------------------------------------------------------------
    With the dual stack solution, a host runs both an IPv4 and 
an IPv6 stack side by side. ``Traffic which reaches the host 
using either network protocol can interact with the host.''\53\ 
In contrast, tunneling is a solution utilized when there is no 
native IPv6 connectivity between different points on the 
network.\54\ ``It encapsulates one version of IP in another so 
the packets can be sent over a backbone that does not support 
the encapsulated IP version. For example, when two isolated 
IPv6 networks need to communicate over an IPv4 network, dual-
stack routers at the network edges can be used to set up a 
tunnel which encapsulates the IPv6 packets within IPv4, 
allowing the IPv6 systems to communicate without having to 
upgrade the IPv4 network infrastructure that exists between the 
networks.''\55\
---------------------------------------------------------------------------
    \53\Robert Cannon, Potential Impacts on Communications From IPv4 
Exhaustion & IPv6 Transition, FCC Staff Working Paper 18 (Dec. 2010), 
available at http://transition.fcc.gov/Daily_Releases/Daily_Business/
2010/db1230/DOC-303870A1.pdf.
    \54\Id.
    \55\IPV Transition Guidance, Federal CIO Council Architecture and 
Infrastructure Committee (Feb. 2006) at 36.
---------------------------------------------------------------------------
    In the current IPv4 network, commercial wireline providers, 
with a few exceptions, assign dynamic IP addresses (or 
temporarily assigned network addresses) to their customers on a 
``one-to-one basis,'' meaning that an individual IP address 
from a public block of addresses is assigned to an individual 
customer on a temporary basis. During the transition to the 
IPv6 network, commercial providers may rely on what is known as 
a Network Address Translation (NAT) box.
    The FCC provides the following description of a NAT system:

        A NAT box is a host on the Internet with an IP address 
        that has behind it a network of privately addressed 
        computers. A specific block of addresses has been set 
        aside for private use and is not advertised by networks 
        to the public Internet. Since these addresses only work 
        internally and cannot be used to communicate on the 
        public Internet, they can be reused over and over again 
        behind NATs.

        An example of a NAT might be an off-the-shelf Wi-Fi 
        access point that a residential user might use for home 
        Internet access. The ISP assigns to that subscriber an 
        IP address which is assigned to whatever computer the 
        subscriber attaches at the end of the network. The 
        subscriber attaches the Wi-Fi router. Behind the Wi-Fi 
        router could be all of the computers in the house; the 
        router assigns them IP addresses from the private IP 
        address space. In this way, a subscriber with one 
        public IP number can have multiple computers attached 
        to the Internet. Commercial ISPs may utilize private IP 
        numbers for their subscribers, and corporate LANs (such 
        as the FCC internal network) may also utilize private 
        IP addresses.

        Network operators utilize NATs for various objectives. 
        First, NATs are used to conserve the scarce numbering 
        resource; one public address maps to multiple private 
        addresses. Second, NATs are also used for network 
        management and security, creating single points of 
        entry into networks.\56\
---------------------------------------------------------------------------
    \56\Supra note 53 at 22 (internal citations omitted).

    Utilization of a NAT box during IPv6 transition will have 
the effect of changing the ``one-to-one'' IP address assignment 
process to a ``one-to-many'' process, in that one public IP 
address will be sent to a router or proxy which will, in turn, 
assign private IP addresses to a group of customers to access 
the Internet.
    Law enforcement officials or other governmental entities, 
private entities, and individuals that currently compel 
retained data from commercial providers typically proffer the 
IP address, date and time information, and perhaps other 
information to facilitate the provider identifying its customer 
or subscriber. The providers inform the Committee that during 
IPv6 transition, particularly if a NAT or proxy system is 
utilized, additional information from the requesting entity 
will likely be necessary to identify the individual customer or 
subscriber. This may include the private and public network 
source port numbers associated with the assigned subscriber IP 
address, which would be essential when providers are utilizing 
a carrier-grade NAT/Port Address Translation (PAT) solution. It 
would also be important for the requesting entity to be able to 
provide the private and public network destination port numbers 
in order to further correlate the customer or subscriber to the 
destination.
    The data retention mandate in Section 4 of H.R. 1981 is 
intended to apply before, during and after\57\ IPv6 transition. 
The Committee appreciates, however, that during IPv6 
transition, this mandate could impose additional technical and 
cost burdens on some commercial providers who utilize a NAT or 
proxy server system to assign private IP addresses to customers 
rather than public IP addresses. Therefore, provider compliance 
with a subpoena or court order for retained data from a NAT 
system will likely require additional information from the 
requesting entity. The Committee strongly encourages those 
commercial providers and federal, state and local law 
enforcement agencies, and other affected entities to work 
cooperatively to seek technically feasible and economically 
reasonable solutions for retaining private addresses and the 
information necessary to identify those addresses with 
subscriber information.
---------------------------------------------------------------------------
    \57\Id. at 23. ``After the transition to IPv6, with the 
dramatically increased address space, NATs would no longer be necessary 
in order to deal with the scarce numbering resource. It is expected 
that with IPv6 the use of NATs will likely decrease although it may not 
disappear.''
---------------------------------------------------------------------------

IV. ADMINISTRATIVE SUBPOENA AUTHORITY FOR APPREHENSION OF FUGITIVE SEX 
                               OFFENDERS

    The U.S. Marshals Service serves a unique function among 
Federal law enforcement agencies. As authorized by 28 U.S.C. 
Sec. 566, the Marshals' primary mission is ``to provide for the 
security and to obey, execute, and enforce all orders of the 
United States District Courts, the United States Courts of 
Appeals, the Court of International Trade, and the United 
States Tax Court, as provided by law.''
    The Marshals Service also executes all writs, process, and 
orders issued under the authority of the United States, and 
provides personal protection of Federal judges, court officers, 
witnesses, and others.\58\
---------------------------------------------------------------------------
    \58\28 U.S.C. Sec. Sec. 566(c), (e)(1)(A).
---------------------------------------------------------------------------
    The Marshals Service is also the Federal Government's 
primary agency for fugitive apprehension.\59\ The agency holds 
all Federal arrest warrants until they are executed or 
dismissed. In fiscal year 2010, the Marshals apprehended more 
than 36,100 Federal fugitives, clearing approximately 39,100 
felony warrants.\60\
---------------------------------------------------------------------------
    \59\28 U.S.C. Sec. 566(e)(1)(B).
    \60\Fact Sheets: Sex Offender Operations, U.S. Marshals Service, 
Feb. 25, 2011, available at http://www.usmarshals.gov/duties/
factsheets/fugitive_ops-2011.html.
---------------------------------------------------------------------------
    The Adam Walsh Child Protection and Safety Act of 2006\61\ 
requires the Attorney General to use the Justice Department law 
enforcement resources to assist jurisdictions in locating and 
apprehending sex offenders who fail to comply with registration 
requirements. The Marshals is the primary agency charged with 
this responsibility.
---------------------------------------------------------------------------
    \61\Pub. L. No. 109-248, 111 Stat. 2466 (2006).
---------------------------------------------------------------------------
    Under the Adam Walsh Act, the Marshals Service assists 
state, local, tribal and territorial authorities in the 
location and apprehension of non-compliant sex offenders. It 
also investigates violations of the criminal provisions of the 
Adam Walsh Act, and identifies and locates sex offenders 
displaced as a result of a major disaster. In fiscal year 2010, 
the Marshals apprehended 11,072 sex offenders, initiated 3,025 
investigations, issued 426 warrants for registration 
violations, and arrested 360 people for other violations of the 
Adam Walsh Act.\62\
---------------------------------------------------------------------------
    \62\Supra note 60.
---------------------------------------------------------------------------
    The Marshals' duties under the Adam Walsh Act require it to 
respond immediately to a tip regarding an absconded sex 
offender. However, to obtain records relevant to fugitive 
apprehension, the Marshals must make a request to a United 
States Attorney's Office to seek an ``All Writs Act'' order 
under 28 USC Sec. 1651. This process is burdensome and time-
consuming.
    Administrative subpoena authority will allow the Marshals 
to access hotel, rental car, or airline records quickly, before 
the trail goes cold on a fugitive sex offender. Administrative 
subpoenas can only be used to obtain these types of records--
they cannot be used to obtain the content of an email or 
wiretap a telephone.
    The administrative subpoena statute, 18 USC Sec. 3486, 
currently gives authority to use such subpoenas to the Attorney 
General and the Secretary of the Treasury for cases involving 
health care, child sexual exploitation, or threats against the 
President or other persons protected by the Secret Service. 
This is narrow authority is provided to the law enforcement 
agencies that investigate these areas of crime--the FBI and the 
Secret Service.
    Although the Marshals Service is under the authority of the 
Attorney General, their unique role of providing Federal court 
security and fugitive apprehension does not include criminal 
investigations involving the sexual exploitation or abuse of 
children. As such, the authority granted under section 3486 
does not automatically extend to the Marshals.
    H.R. 1981, therefore, performs two important steps. First, 
it amends the general administrative subpoena authority 
statute--18 U.S.C. Sec. 3486--to add investigations of 
unregistered sex offenders conducted by the U.S. Marshals 
Service. Second, it amends section 566 of title 28 to give the 
Marshals express administrative subpoena authority--but only 
for fugitive investigations of unregistered sex offenders.
    Unlike the administrative subpoena authority exercised by 
the U.S. Secret Service and the FBI under 18 USC Sec. 3486, 
which is used at the beginning of a criminal investigation, the 
administrative subpoena authority authorized by H.R. 1981 for 
the Marshals Service will only be used after the conclusion of 
a criminal investigation--i.e., after a guilty verdict for a 
sex offense that carries with it a registration requirement and 
after the sex offender has absconded and an arrest warrant has 
been issued by a judge.

       V. ADDITIONAL PROTECTIONS FOR CHILD WITNESSES AND VICTIMS

    Child pornography and exploitation prosecutions often hinge 
on the testimony of the child victim. Unfortunately, many 
children are abused by an acquaintance or even a family member 
and are often intimidated from telling their stories with 
threats that they will be punished or get in trouble if they 
tell.
    Intimidation of minor witnesses is a persistent problem in 
criminal prosecutions. The most notable example was the case of 
DeAndre Whitehead, a Baltimore man who was sentenced to 6 years 
in Federal prison in 2005 for ordering the killing of an 11-
year-old girl who testified in his murder trial. The U.S. 
Attorney for the District of Maryland had to take over the case 
after the state prosecutor failed to secure a conviction in the 
state's intimidation case. Maryland received criticism at the 
time for its ineffective witness intimidation laws.
    The same problem has been seen elsewhere. In 2006, a 
Burlington Township, Pennsylvania, Truman High School class 
president Tyrone Lewis was prohibited from walking at his 
graduation or delivering his address except via video feed 
after the school received threats against Lewis. The threats 
were intended to intimidate his sister, Rachel, who was a 
witness in a murder case.
    Surprisingly, the intimidation does not always come from 
the original perpetrators of the horrific act. In October 2007, 
a defense attorney in a child sexual-abuse case was arrested 
for intimidating the 16-year-old victim.\63\ In February 2010, 
the father of a teen who forced a 5-year-old boy to perform 
sexual acts was charged with intimidating the victim's 
family.\64\ In March 2011, a man charged with abusing two girls 
over a span of 9 years was accused of witness intimidation on 
three different occasions.\65\
---------------------------------------------------------------------------
    \63\Denver Attorney Arrested In Witness Intimidation Case, Denver 
News Channel, Oct. 4, 2007, available at http://
www.thedenverchannel.com/news/14269922/detail.html.
    \64\Father of Rape Suspect Charged with Witness Intimidation, 
Wicked Local, Feb. 19, 2010, available at http://www.wickedlocal.com/
milford/news/x1650244989/Father-of-rape-suspect-charged-with-witness-
intimidation#axzz1RoFC05we.
    \65\Whitman Man Indicted on Child Sex-Abuse Charges, Enterprise 
News, Mar. 09, 2011, available at http://www.enterprisenews.com/news/
cops_and_courts/x13264467/Whitman-man-indicted-on-child-sex-abuse-
charges.
---------------------------------------------------------------------------
    Current fines and contempt citations are inadequate to 
protect minor witnesses and victims, especially in child sex 
abuse cases. For example, in a case in Dublin, Ohio, a high 
school lacrosse coach was fined only $1,000 after he was 
convicted of intimidating a player who accused the man's son, 
an assistant coach on the team, of sexual assault. Although 
Federal law provides criminal penalties for physical violence, 
threats, and other egregious forms of witness intimidation, 
more subtle forms of intimidation directed at a child remain 
unaddressed.
    H.R. 1981 provides Federal courts with the means to control 
such intimidation through effective protection orders, and a 
new felony penalty for violation of such orders will strengthen 
the deterrent effect of a restraining order and prevent 
intimidation.
    H.R. 1981 also instructs the U.S. Sentencing Commission to 
review, and increase if appropriate, the Sentencing Guidelines 
contained in Part J of Chapter 2, relating to penalties for 
witness intimidation in certain crimes against children 
offenses.

        VI. ENHANCED PENALTIES FOR CHILD PORNOGRAPHY POSSESSION

    Current law imposes a maximum 10-year penalty for child 
pornography possession offenses. Since the Supreme Court's 2005 
United States v. Booker\66\ decision, which made the Federal 
Sentencing Guidelines discretionary, in the Federal courts have 
begun to issue lower and lower sentences for child pornography 
offenses. From 2006 to 2010, the rate of within-Guideline range 
sentences for child pornography possession dropped from 62.6% 
to 39.6%. During that same time period, the number of 
possession cases receiving sentencing departures jumped from 61 
(25.6%) to 394 (44.9%).\67\
---------------------------------------------------------------------------
    \66\543 U.S. 220 (2005).
    \67\Average Sentence and Position Relative to the Guideline Range 
for Child Pornography Possession Offenses, Fiscal Years 2005 through 
Preliminary 2010, U.S. Sent. Comm'n (2010).
---------------------------------------------------------------------------
    The decline in penalties stems, in part, from the false 
belief that possession of child pornography is not a serious 
crime, or at least is not as serious as other child 
exploitation offenses. This belief is dangerously flawed.
    As the Justice Department noted in its August 2010 National 
Strategy, ``many experts in the field believe that use of [the] 
term [child pornography] contributes to a fundamental 
misunderstanding of the crime--one that focuses on the 
possession or trading of a picture and leaves the impression 
that what is depicted in the photograph is pornography. Child 
pornography is unrelated to adult pornography; it clearly 
involves the criminal depiction and memorializing of the sexual 
assault of children and the criminal sharing, collecting, and 
marketing of the images.''\68\
---------------------------------------------------------------------------
    \68\The National Strategy for Child Exploitation Prevention and 
Interdiction, A Report to Congress, U.S. Dept. of Justice, Aug. 2010, 
available at http://www.projectsafechildhood.gov/docs/
natstrategyreport.pdf.
---------------------------------------------------------------------------
    The people who consume child pornography create the market 
for it, and thereby encourage the victimization of children. 
According to the Justice Department, 67 percent of reported 
sexual assault victims are children.
    There is a growing link between the possession of child 
pornography and the actual molestation of children. NCMEC 
estimates that more than 40 percent of people convicted of 
possession are also guilty of victimizing a child, and there is 
evidence that pedophiles are increasingly only sharing their 
illegal images with ``select'' groups of people who are also 
able to share homemade images of child exploitation. This trend 
encourages further harm to children.
    In 2009, a symposium of experts who studied child 
pornography met to share individual findings and develop an 
international consensus on the risks to children from child 
pornography. The symposium recognized the general sense that 
there is a connection between child pornography and other sex 
related crimes.

        Symposium participants . . . agreed that there is 
        sufficient evidence of a relationship between 
        possession of child pornography and the commission of 
        contact offenses against children to make this a cause 
        of acute concern. Participants did not see this 
        necessarily as a linear relationship, but considered it 
        a relationship that must be assessed in determining 
        treatment and criminal justice options because, based 
        on research using samples of individuals convicted of 
        child pornography offenses, a significant portion of 
        those who possess child pornography have committed a 
        contact sexual offense against a child.\69\
---------------------------------------------------------------------------
    \69\Andrew G. Oosterbaan, Global Symposium for Examining the 
Relationship Between Online and Offline Offenses and Preventing the 
Sexual Exploitation of Children, U.S. Dept. of Justice 10 (2009), 
available at http://www.governo.it/GovernoInforma/Dossier/
G8_interno_giustizia/LEPSG_Child_Exploitation_Symposium.pdf.

    The belief that mere possession of child pornography images 
is not a serious crime also ignores the ongoing victimization 
that the children experience, often well into adulthood, 
knowing that their images continue to be shared on the 
Internet. As one psychologist recently testified in a child 
pornography possession case, ``victims are constantly anxious, 
they walk around anxious. . . . when they go into the street 
they look at everyone they pass and say, `Did you see the 
pictures?'. . . . They are constantly ruminating about who have 
seen those pictures.''\70\ These children's lives are thrown 
into permanent disarray to feed the appetites of the ``mere'' 
possessors.
---------------------------------------------------------------------------
    \70\United States v. C.R., __ F.Supp.2d __, 2011 WL 1901645, at *33 
(E.D.N.Y. 2011).
---------------------------------------------------------------------------
    H.R. 1981 ensures tough penalties for those who victimize 
the youngest and most vulnerable of our society by increasing 
the maximum penalty from 10 to 20 years for offenses under 
sections 2252(b)(2) and 2252A(b)(2) of title 18 involving 
prepubescent minors or minors under the age of 12.
    H.R. 1981 is supported by the National Center for Missing 
and Exploited Children, the National Center for Victims of 
Crime, the National Sheriffs' Association, the Major County 
Sheriffs' Association, the International Union of Police 
Associations, the Fraternal Order of Police, the International 
Association of Chiefs of Police, and the Federal Law 
Enforcement Officers Association.

                                Hearings

    The Committee's Subcommittee on Crime, Terrorism, and 
Homeland Security held 1 day of hearings on H.R. 1981 on July 
12, 2011. Testimony was received from Mr. Ernie Allen, 
President and CEO, National Center for Missing and Exploited 
Children, Sheriff Michael J. Brown, Bedford County Sheriff's 
Office, and Mr. Marc Rotenberg, President, Electronic Privacy 
Information Center, with additional material submitted by the 
National Sheriffs' Association, Major County Sheriffs' 
Association, the Fraternal Order of Police, the International 
Union of Police Associations, the National Center for Victims 
of Crime, and Mr. Levi C. Maaia, Vice President, FullChannel. 
In addition, the Subcommittee held a hearing on January 25, 
2011, to take testimony on the subject of data retention. 
Testimony was received from Mr. Jason M. Weinstein, Deputy 
Assistant Attorney General, U.S. Department of Justice, Mr. 
John M. Douglass, Chief of Police, Overland Park, Kansas, Ms. 
Kate Dean, Executive Director, U.S. Internet Service Providers 
Association, and Mr. John B. Morris, Jr., General Counsel, 
Center for Democracy and Technology, with additional material 
submitted by Mr. Ernie Allen, President and CEO, National 
Center for Missing and Exploited Children.

                        Committee Consideration

    On July 28, 2011, the Committee met in open session and 
ordered the bill H.R. 1981 favorably reported with an 
amendment, by a rollcall vote of 19 to 10, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1981.
    1. An amendment by Mr. Scott to limit the data retention 
period to 180 days. Defeated 12-14.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................              X
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             12              14
----------------------------------------------------------------------------------------------------------------

    2. An amendment by Mr. Smith to add safe harbor language to 
Section 2 of the bill (creating a new offense for financial 
facilitation of access to child pornography) to exempt 
financial institutions assisting law enforcement 
investigations; to rewrite Section 4 relating to data 
retention; and to make other technical and conforming changes. 
Adopted 19-4.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Lungren.....................................................              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................
Ms. Adams.......................................................              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             19               4
----------------------------------------------------------------------------------------------------------------

    3. An amendment by Mr. Sensenbrenner to strike Section 7 
and 10 (redesignated) from the underlying legislation to strike 
all subpoena powers granted under the bill. Defeated 10-17.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             10              17
----------------------------------------------------------------------------------------------------------------

    4. An amendment by Ms. Lofgren to strike Section 4 from the 
bill. Defeated 8-15.

                                                 ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................                              X
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              8              15
----------------------------------------------------------------------------------------------------------------

    5. An amendment by Mr. Scott to authorize additional funds 
for FBI agents, prosecutors and defenders assigned to work on 
child exploitation cases. Defeated 7-11.

                                                 ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................
Ms. Adams.......................................................                              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              7              11
----------------------------------------------------------------------------------------------------------------

    6. An amendment by Ms. Lofgren to require ISPs to report 
nature of requests for data and costs to AOC, and also to 
require AOC to report to Congress yearly. Defeated 9-15.

                                                 ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              9              15
----------------------------------------------------------------------------------------------------------------

    7. An amendment by Ms. Lofgren to strike Sections 5 and 6 
and to replace with language clarifying that existing 
protections under ECPA apply to data retained under Section 4. 
Defeated 7-18.

                                                 ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              7              18
----------------------------------------------------------------------------------------------------------------

    8. An amendment by Ms. Lofgren to forbid communication 
services from collecting any additional data that they do not 
already associate or collect for business reasons, and to 
forbid communication services from associating any information 
with a particular user. Defeated 7-16.

                                                 ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Cohen.......................................................
Mr. Johnson.....................................................
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              7              16
----------------------------------------------------------------------------------------------------------------

    9. An amendment by Ms. Lofgren to retitle the bill as the 
``Keep Every American's Digital Data for Submission to the 
Federal Government Without a Warrant Act of 2011.'' Defeated 9-
18.

                                                 ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................                              X
Mr. Chabot......................................................                              X
Mr. Issa........................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................              9              18
----------------------------------------------------------------------------------------------------------------

    10. Motion to report H.R. 1981 favorably, as amended. 
Passed 19-10.

                                                 ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................              X
Mr. Chabot......................................................              X
Mr. Issa........................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................
Ms. Wasserman Schultz...........................................
                                                                 -----------------------------------------------
    Total.......................................................             19              10
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises 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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives 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. 1981 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, October 12, 2011.
Hon. Lamar Smith, 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. 1981, the 
``Protecting Children from Internet Pornographers Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten (for Federal costs), who can be reached at 226-2860, 
and Marin Randall (for the impact on the private sector), who 
can be reached at 226-2940.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1981--Protecting Children from Internet Pornographers Act.
    H.R. 1981 would amend current law to modify and expand 
Federal crimes related to child pornography. The legislation 
would prohibit financial transactions that facilitate access to 
child pornography. The legislation also would require Internet 
service providers to retain Internet usage information for at 
least 18 months and prevent legal actions against the providers 
related to the retention of those records. The bill also would 
allow the U.S. Marshals Service to issue administrative 
subpoenas to investigate unregistered sex offenders. Under the 
legislation, district courts would be required to issue 
protective orders to prevent harassment or intimidation of a 
minor victim or witness. H.R. 1981 also would direct the U.S. 
Sentencing Commission to review Federal sentencing guidelines 
related to certain child abuse crimes.

                      IMPACT ON THE FEDERAL BUDGET

    Enacting the legislation could affect direct spending and 
revenues; therefore, pay-as-you-go procedures apply. However, 
CBO estimates that any net effects would be insignificant in 
any year. The bill could increase direct spending by extending 
witness protective services to certain minor witnesses and 
victims. Any such increases would be insignificant because of 
the small number of witnesses and victims likely to be 
affected.
    In addition, because those prosecuted and convicted under 
H.R. 1981 would be subject to increased criminal fines, the 
Federal Government might collect additional fines if the bill 
is enacted. Criminal fines are recorded as revenues, deposited 
in the Crime Victims Fund, and later spent. CBO expects that 
any additional revenues and direct spending would not be 
significant because of the small number of cases likely to be 
affected.
    Based on information from the Department of Justice (DOJ), 
CBO estimates that implementing H.R. 1981 would cost around $1 
million over the 2012-2016 period, assuming the availability of 
appropriated funds, mostly for DOJ to complete two studies and 
for changes in prison sentences. CBO estimates that H.R. 1981 
would have a negligible impact on the number of offenders under 
Federal incarceration because many of the offenders prosecuted 
under H.R. 1981 can be prosecuted under current law.

 IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS AND THE PRIVATE SECTOR

    H.R. 1981 contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on the State, local, or tribal governments.
    The bill would impose private-sector mandates, as defined 
in UMRA, on providers of electronic communications services 
(such as telecommunication companies and Internet service 
providers) and on entities who have a right to file certain 
claims against those providers. The bill would require 
providers to retain for one year a detailed log of all 
electronic addresses assigned to each of their customers. To 
comply, providers would have to upgrade or build systems and 
buy hardware to collect, store, secure, and administer the 
required data.
    CBO estimates that the total costs to private entities of 
the mandates in the bill would exceed the annual threshold 
established in UMRA for private-sector mandates ($142 million 
in 2011, adjusted annually for inflation).
    According to data from the Census Bureau, there are 
approximately 3,000 providers of electronic communications 
services. Based on information from industry experts and data 
technology professionals about current practices and the cost 
to design and install the data systems that would be required 
by the bill, CBO estimates that the aggregate cost of this 
mandate to the private sector would be more than $200 million.
    The bill also would eliminate an existing right to file 
claims against providers for retaining records of assigned 
electronic addresses. The cost of this mandate would be the 
forgone net value of any awards and settlements in such claims. 
Based on value of awards and settlements in recent court 
decisions related to privacy rights and assigned electronic 
addresses, CBO expects that the cost of this mandate would not 
be large.

                             STAFF CONTACTS

    The CBO staff contacts for this estimate are Martin von 
Gnechten (for Federal costs) and Marin Randall (for the impact 
on the private sector). The estimate was approved by Theresa 
Gullo, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1981 provides additional investigative and prosecutorial tools 
and enhanced penalties to combat the proliferation of Internet 
child pornography, child exploitation offenses, and other 
Internet-based crimes.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1981 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short Title. This section cites the short title 
of the bill as the ``Protecting Children from Internet 
Pornographers Act of 2011.''
    Section 2. Financial Facilitation of Access to Child 
Pornography. This section creates a new Federal offense for the 
financial facilitation of child pornography. Any person who 
conducts a financial transaction knowing that it will 
facilitate access to child pornography will be liable under 
this section and may be fined or imprisoned up to twenty years. 
This new offense makes it a crime for someone to conduct a 
financial transaction knowing that such transaction will 
facilitate access to child pornography. Section 2 does not 
apply to financial transactions conducted by a person in 
cooperation with, or with the consent of, a federal, state or 
local law enforcement agency.
    Section 3. Money Laundering Predicate. This section adds 
section 1466A of title 18 (relating to obscene visual 
representation of the abuse of children) and section 1960A of 
title 18 (relating to financial facilitation of access to child 
pornography) as specified unlawful activities under section 
1956 of title 18, the Federal money laundering statute.
    Section 4. Retention of Certain Records by Electronic 
Communication Service Providers. Subsection (a) requires 
commercial providers of an electronic communication service to 
retain for 1 year a log of the temporarily assigned network 
addresses the provider assigns to a subscriber or customer. 
Such log must enable the identification of the corresponding 
customer or subscriber information that providers are currently 
required to disclose pursuant to 18 U.S.C. Sec. 2703(c)(2). The 
intent of this language is for these two subsections--the newly 
created 2703(h) and the existing (c)(2) to work in tandem with 
each other. Section 4 does not instruct providers on how they 
retain IP address assignment logs out of an abundance of 
caution to not disrupt the current retention practices of many 
providers. Section 4 is intended to enable the identification 
of a customer or subscriber to a corresponding IP address since 
this is often the only mechanism for identifying a criminal 
suspect operating via the Internet. It is envisioned that once 
such person's identity is determined, investigators will 
immediately seek disclosure of any information the provider 
also has under (c)(2). The types of information listed under 
(c)(2) are already held by most if not all providers as a 
necessary function of their businesses--name, address, billing 
information, etc. Without the required retention under the new 
2703(h), there is often no way for law enforcement to request 
this commonly-held information under (c)(2).
    Section 4 applies to both commercial wireline and wireless 
providers of an electronic communication service.\71\ The 
provision does not extend to commercial providers of a remote 
computing service since such a service does not engage in the 
act of assigning temporarily assigned network addresses to 
subscribers or customers. This section defines commercial 
providers in such a way as to exclude retention by a modem in a 
home or network in a business, free Wi-Fi services provided by 
bookstores, coffee shops, restaurants or other businesses, and 
fee-based Wi-Fi provided by hotels or other entities whose 
services are not available to the public. The intent is to 
maintain the current retention practices by telecommunication 
companies while not creating a new requirement on services such 
as those described above that may fall incidentally within the 
technical definition of electronic communication service.
---------------------------------------------------------------------------
    \71\According to information compiled by Justice Department on the 
six largest wireless providers in the U.S., one major provider already 
retains IP session information for 1 rolling year, two wireless 
providers retain this data for 60 days, one provider retains non-public 
IP address data for 72 hours, and two providers do not retain at all. 
See Retention Periods of Major Cellular Service Providers, Data 
Gathered by the Computer Crime and Intellectual Property Section, U.S. 
Dept. of Justice (Aug. 2010).
---------------------------------------------------------------------------
    Specifically, the definition of commercial provider 
excludes Internet services offered for free. Numerous 
businesses, city governments, and airports offer free Internet 
services to customers or to those within the range of service 
(such as Wi-Fi). By limiting the application of the bill to 
commercial providers who offer electronic communication 
services for a fee, an entity that offers free Internet service 
is excluded from the mandate.
    Likewise, the bill also limits application of Section 4 to 
only commercial providers who offer electronic communication 
services to the public. Hotels and airlines, for example, offer 
fee-based Internet service to their customers, which is 
incidental to the primary service provided. This service also 
is available only to customers who first acquire the primary 
service of a hotel room or airline ticket. Unlike free Internet 
service available to all people who are in the District of 
Columbia or who purchase a coffee at Starbucks (and even those 
who do not), fee-based Internet service provided by hotels, 
airlines, or other similar businesses is not available to the 
public.
    To be sure, although a member of the general public can 
enter a hotel lobby, that same person cannot enter a hotel 
room--for any reason--without first paying for it or without 
the permission of a paying guest. To do so would be 
trespassing. No one would contend that the Snickers candy bar 
in a hotel room minibar or the wine offered for purchase on an 
airplane is available to any member of the public who wishes to 
purchase them. These are incidental services to the primary 
services of a hotel room or airline flight and can only be 
purchased once the necessary steps to acquire the primary 
service are completed. The same is true for fee-based Internet 
service in a hotel room or on an airplane. They are not 
available to the public but only to paying hotel room guests or 
airline passengers.
    Subsection (a) limits access to such records to only 
governmental entities and directs the Attorney General to 
conduct a study of the costs associated with compliance by 
providers with the retention mandate. ``Governmental entity'' 
is defined by 18 U.S.C. Sec. 2711(4).
    Subsection (b) expresses the Sense of Congress that records 
retained pursuant to this section should be stored securely to 
protect customer privacy and prevent against potential breach 
of the records.
    Subsection (c) gives providers up to 180 days to comply 
with the retention requirement.
    Subsection (d) directs the Attorney General to study the 
privacy standards implemented by providers with regard to 
compliance with the retention requirement and the frequency of 
any reported breaches of such data.
    Section 5. No Cause of Action against a Provider Disclosing 
Information under this Chapter. This section amends section 
2703(e) of title 18 to provide additional liability protections 
to providers who retain records pursuant to section 4 of the 
Act.
    Section 6. Good Faith Reliance on Requirement. This section 
amends section 2707(e) of title 18 to add retention of records 
pursuant to the requirement under section 4 to the list of 
actions afforded liability protections.
    Section 7. Subpoena Authority. This section amends section 
556 of title 28 (governing the powers and duties of the U.S. 
Marshals Service) to authorize the U.S. Marshals Service to 
issue administrative subpoenas in investigations of 
unregistered sex offenders.
    Section 8. Protection of Child Witnesses. This section 
amends section 1514 of title 18 (providing for protection of 
victims or witnesses) to expand protection of minor victims and 
witnesses from harassment or intimidation. The core of the 
section is an amendment to the current Federal protection order 
statute to allow courts greater flexibility in cases involving 
child victims and witnesses, who are more vulnerable to 
intimidation and manipulation. This section allows a Federal 
court to issue a protective order if it determines that 
harassment or intimidation exists specifically in the case of a 
minor witness and that the intimidation would affect the 
willingness of the witness to testify in an ongoing 
investigation or Federal criminal matter. Protective orders for 
minor witnesses can be issued for 3 years or until the 
witnesses' 18th birthday, whichever is longer (protective 
orders for adults are capped at 3 years in length). This 
section also permits courts to issue protection orders to 
restrict the harassing or intimidating distribution of a 
witness's restricted personal information on the Internet. This 
section also fills a gap in current law by creating criminal 
penalties of a fine, imprisonment up to 5 years, or both, for 
knowing and intentional violations of any protective order 
issued under section 1514. Under the statute as currently 
written, there is no criminal enforcement capability for 
protective orders issued, and violators likely face nothing 
more than a contempt citation. This section was previously 
approved by both the House and Senate in the 111th Congress but 
not enacted into law.
    Section 9. Sentencing Guidelines. This section directs the 
United States Sentencing Commission to review and amend Federal 
sentencing guidelines and policy statements to ensure that such 
guidelines provide an additional penalty for obstruction of 
justice, namely witness intimidation, associated with sex 
trafficking of children and other child abuse crimes. Similar 
language passed the House and Senate in the 111th Congress but 
was not enacted into law.
    Section 10. Enhanced Penalties for Possession of Child 
Pornography. This section increases the maximum penalty from 10 
to 20 years for child pornography offenses involving 
prepubescent minors or minors under the age of 12. This 
increase was approved by the House and Senate in the 111th 
Congress but not enacted into law.
    Section 11. Administrative Subpoenas. This section makes a 
conforming amendment to section 3486 of title 18 (governing 
administrative subpoena authority) to authorize such authority 
for the USMS in apprehending unregistered sex offenders.

         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 italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

PART I--CRIMES

           *       *       *       *       *       *       *


CHAPTER 73--OBSTRUCTION OF JUSTICE

           *       *       *       *       *       *       *


Sec. 1514. Civil action to restrain harassment of a victim or witness

  (a) * * *
  (b)(1) A United States district court, upon motion of the 
attorney for the Government, or its own motion, shall issue a 
protective order prohibiting harassment of a victim or witness 
in a Federal criminal case or investigation if the court, after 
a hearing, finds by a preponderance of the evidence that 
harassment of an identified victim or witness in a Federal 
criminal case or investigation exists or that such order is 
necessary to prevent and restrain an offense under section 1512 
of this title, other than an offense consisting of misleading 
conduct, or under section 1513 of this title.
  (2) In the case of a minor witness or victim, the court shall 
issue a protective order prohibiting harassment or intimidation 
of the minor victim or witness if the court finds evidence that 
the conduct at issue is reasonably likely to adversely affect 
the willingness of the minor witness or victim to testify or 
otherwise participate in the Federal criminal case or 
investigation. Any hearing regarding a protective order under 
this paragraph shall be conducted in accordance with paragraphs 
(1) and (3), except that the court may issue an ex parte 
emergency protective order in advance of a hearing if exigent 
circumstances are present. If such an ex parte order is applied 
for or issued, the court shall hold a hearing not later than 14 
days after the date such order was applied for or is issued.
  [(2)] (3) At the hearing referred to in paragraph (1) of this 
subsection, any adverse party named in the complaint shall have 
the right to present evidence and cross-examine witnesses.
  [(3)] (4) A protective order shall set forth the reasons for 
the issuance of such order, be specific in terms, describe in 
reasonable detail [(and not by reference to the complaint or 
other document)] the act or acts being restrained.
  [(4)] (5) The court shall set the duration of effect of the 
protective order for such period as the court determines 
necessary to prevent harassment of the victim or witness but in 
no case for a period in excess of three years from the date of 
such order's issuance. The attorney for the Government may, at 
any time within ninety days before the expiration of such 
order, apply for a new protective order under this section, 
except that in the case of a minor victim or witness, the court 
may order that such protective order expires on the later of 3 
years after the date of issuance or the date of the eighteenth 
birthday of that minor victim or witness.
  [(c) As used in this section--
          [(1) the term ``harassment'' means a course of 
        conduct directed at a specific person that--
                  [(A) causes substantial emotional distress in 
                such person; and
                  [(B) serves no legitimate purpose; and
          [(2) the term ``course of conduct'' means a series of 
        acts over a period of time, however short, indicating a 
        continuity of purpose.]
  (c) Whoever knowingly and intentionally violates or attempts 
to violate an order issued under this section shall be fined 
under this title, imprisoned not more than 5 years, or both.
  (d)(1) As used in this section--
          (A) the term ``course of conduct'' means a series of 
        acts over a period of time, however short, indicating a 
        continuity of purpose;
          (B) the term ``harassment'' means a serious act or 
        course of conduct directed at a specific person that--
                  (i) causes substantial emotional distress in 
                such person; and
                  (ii) serves no legitimate purpose;
          (C) the term ``immediate family member'' has the 
        meaning given that term in section 115 and includes 
        grandchildren;
          (D) the term ``intimidation'' means a serious act or 
        course of conduct directed at a specific person that--
                  (i) causes fear or apprehension in such 
                person; and
                  (ii) serves no legitimate purpose;
          (E) the term ``restricted personal information'' has 
        the meaning give that term in section 119;
          (F) the term ``serious act'' means a single act of 
        threatening, retaliatory, harassing, or violent conduct 
        that is reasonably likely to influence the willingness 
        of a victim or witness to testify or participate in a 
        Federal criminal case or investigation; and
          (G) the term ``specific person'' means a victim or 
        witness in a Federal criminal case or investigation, 
        and includes an immediate family member of such a 
        victim or witness.
  (2) For purposes of subparagraphs (B)(ii) and (D)(ii) of 
paragraph (1), a court shall presume, subject to rebuttal by 
the person, that the distribution or publication using the 
Internet of a photograph of, or restricted personal information 
regarding, a specific person serves no legitimate purpose, 
unless that use is authorized by that specific person, is for 
news reporting purposes, is designed to locate that specific 
person (who has been reported to law enforcement as a missing 
person), or is part of a government-authorized effort to locate 
a fugitive or person of interest in a criminal, antiterrorism, 
or national security investigation.

           *       *       *       *       *       *       *


                        CHAPTER 95--RACKETEERING

Sec.
1951. Interference with commerce by threats or violence.
     * * * * * * *
1960A. Financial facilitation of access to child pornography.

           *       *       *       *       *       *       *


Sec. 1956. Laundering of monetary instruments

  (a) * * *

           *       *       *       *       *       *       *

  (c) As used in this section--
          (1) * * *

           *       *       *       *       *       *       *

          (7) the term ``specified unlawful activity'' means--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) an offense under section 32 (relating to 
                the destruction of aircraft), section 37 
                (relating to violence at international 
                airports), section 115 (relating to 
                influencing, impeding, or retaliating against a 
                Federal official by threatening or injuring a 
                family member), section 152 (relating to 
                concealment of assets; false oaths and claims; 
                bribery), section 175c (relating to the variola 
                virus), section 215 (relating to commissions or 
                gifts for procuring loans), section 351 
                (relating to congressional or Cabinet officer 
                assassination), any of sections 500 through 503 
                (relating to certain counterfeiting offenses), 
                section 513 (relating to securities of States 
                and private entities), section 541 (relating to 
                goods falsely classified), section 542 relating 
                to entry of goods by means of false 
                statements), section 545 (relating to smuggling 
                goods into the United States), section 549 
                (relating to removing goods from Customs 
                custody), section 554 (relating to smuggling 
                goods from the United States), section 641 
                (relating to public money, property, or 
                records), section 656 (relating to theft, 
                embezzlement, or misapplication by bank officer 
                or employee), section 657 (relating to lending, 
                credit, and insurance institutions), section 
                658 (relating to property mortgaged or pledged 
                to farm credit agencies), section 666 (relating 
                to theft or bribery concerning programs 
                receiving Federal funds), section 793, 794, or 
                798 (relating to espionage), section 831 
                (relating to prohibited transactions involving 
                nuclear materials), section 844 (f) or (i) 
                (relating to destruction by explosives or fire 
                of Government property or property affecting 
                interstate or foreign commerce), section 875 
                (relating to interstate communications), 
                section 922(1) (relating to the unlawful 
                importation of firearms), section 924(n) 
                (relating to firearms trafficking), section 956 
                (relating to conspiracy to kill, kidnap, maim, 
                or injure certain property in a foreign 
                country), section 1005 (relating to fraudulent 
                bank entries), 1006(relating to fraudulent 
                Federal credit institution entries), 
                1007(relating to Federal Deposit Insurance 
                transactions), 1014(relating to fraudulent loan 
                or credit applications), section 1030 (relating 
                to computer fraud and abuse), 1032(relating to 
                concealment of assets from conservator, 
                receiver, or liquidating agent of financial 
                institution), section 1111 (relating to 
                murder), section 1114 (relating to murder of 
                United States law enforcement officials), 
                section 1116 (relating to murder of foreign 
                officials, official guests, or internationally 
                protected persons), section 1201 (relating to 
                kidnaping), section 1203 (relating to hostage 
                taking), section 1361 (relating to willful 
                injury of Government property), section 1363 
                (relating to destruction of property within the 
                special maritime and territorial jurisdiction), 
                1466A (relating to obscene visual 
                representation of the abuse of children), 
                section 1708 (theft from the mail), section 
                1751 (relating to Presidential assassination), 
                1960A (relating to financial facilitation of 
                access to child pornography), section 2113 or 
                2114 (relating to bank and postal robbery and 
                theft), section 2252A (relating to child 
                pornography) where the child pornography 
                contains a visual depiction of an actual minor 
                engaging in sexually explicit conduct, section 
                2260 (production of certain child pornography 
                for importation into the United States), 
                section 2280 (relating to violence against 
                maritime navigation), section 2281 (relating to 
                violence against maritime fixed platforms), 
                section 2319 (relating to copyright 
                infringement), section 2320 (relating to 
                trafficking in counterfeit goods and services), 
                section 2332 (relating to terrorist acts abroad 
                against United States nationals), section 2332a 
                (relating to use of weapons of mass 
                destruction), section 2332b (relating to 
                international terrorist acts transcending 
                national boundaries), section 2332g (relating 
                to missile systems designed to destroy 
                aircraft), section 2332h (relating to 
                radiological dispersal devices), section 2339A 
                or 2339B (relating to providing material 
                support to terrorists), section 2339C (relating 
                to financing of terrorism), or section 2339D 
                (relating to receiving military-type training 
                from a foreign terrorist organization) of this 
                title, section 46502 of title 49, United States 
                Code, a felony violation of the Chemical 
                Diversion and Trafficking Act of 1988 (relating 
                to precursor and essential chemicals), section 
                590 of the Tariff Act of 1930 (19 U.S.C. 1590) 
                (relating to aviation smuggling), section 422 
                of the Controlled Substances Act (relating to 
                transportation of drug paraphernalia), section 
                38(c) (relating to criminal violations) of the 
                Arms Export Control Act, section 11 (relating 
                to violations) of the Export Administration Act 
                of 1979, section 206 (relating to penalties) of 
                the International Emergency Economic Powers 
                Act, section 16 (relating to offenses and 
                punishment) of the Trading with the Enemy Act, 
                any felony violation of section 15 of the Food 
                and Nutrition Act of 2008 (relating to 
                supplemental nutrition assistance program 
                benefits fraud) involving a quantity of 
                benefits having a value of not less than 
                $5,000, any violation of section 543(a)(1) of 
                the Housing Act of 1949 (relating to equity 
                skimming), any felony violation of the Foreign 
                Agents Registration Act of 1938, any felony 
                violation of the Foreign Corrupt Practices Act, 
                or section 92 of the Atomic Energy Act of 1954 
                (42 U.S.C. 2122) (relating to prohibitions 
                governing atomic weapons)

           *       *       *       *       *       *       *


Sec. 1960A. Financial facilitation of access to child pornography

  (a) In General.--Whoever knowingly conducts, or attempts or 
conspires to conduct, a financial transaction (as defined in 
section 1956(c)) in or affecting interstate or foreign 
commerce, knowing that such transaction will facilitate access 
to, or the possession of, child pornography (as defined in 
section 2256) shall be fined under this title or imprisoned not 
more than 20 years, or both.
  (b) Exclusion From Offense.--This section does not apply to a 
financial transaction conducted by a person in cooperation 
with, or with the consent of, any Federal, State, or local law 
enforcement agency.

           *       *       *       *       *       *       *


CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

           *       *       *       *       *       *       *


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

  (a) * * *
  (b)(1) * * *
  (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 10 years, or both, but if any 
visual depiction involved in the offense involved a 
prepubescent minor or a minor who had not attained 12 years of 
age, such person shall be fined under this title and imprisoned 
for not more than 20 years, or if such person has a prior 
conviction under this chapter, chapter 71, chapter 109A, or 
under section 920 of title 10 (article 120 of the Uniform Code 
of Military Justice), 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 10 years nor more than 20 years.

           *       *       *       *       *       *       *


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

  (a) * * *
  (b)(1) * * *
  (2) Whoever violates, or attempts or conspires to violate, 
subsection (a)(5) shall be fined under this title or imprisoned 
not more than 10 years, or both, but, if any image of child 
pornography involved in the offense involved a prepubescent 
minor or a minor who had not attained 12 years of age, such 
person shall be fined under this title and imprisoned for not 
more than 20 years, or if such person has a prior conviction 
under this chapter, chapter 71, chapter 109A, or chapter 117, 
or under section 920 of title 10 (article 120 of the Uniform 
Code of Military Justice), 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 10 years nor 
more than 20 years.

           *       *       *       *       *       *       *


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

           *       *       *       *       *       *       *


Sec. 2703. Required disclosure of customer communications or records

  (a) * * *

           *       *       *       *       *       *       *

  (e) No Cause of Action Against a Provider Disclosing 
Information Under This Chapter.--No cause of action shall lie 
in any court against any provider of wire or electronic 
communication service, its officers, employees, agents, or 
other specified persons for retaining records, providing 
information, facilities, or assistance in accordance with the 
terms of a court order, warrant, subpoena, statutory 
authorization, or certification under this chapter.

           *       *       *       *       *       *       *

  (h) Retention of Certain Records.--
          (1) A commercial provider of an electronic 
        communication service shall retain for a period of at 
        least one year a log of the temporarily assigned 
        network addresses the provider assigns to a subscriber 
        to or customer of such service that enables the 
        identification of the corresponding customer or 
        subscriber information under subsection (c)(2) of this 
        section.
          (2) Access to a record or information required to be 
        retained under this subsection may not be compelled by 
        any person or other entity that is not a governmental 
        entity.
          (3) The Attorney General shall make a study to 
        determine the costs associated with compliance by 
        providers with the requirement of paragraph (1). Such 
        study shall include an assessment of all the types of 
        costs, including for hardware, software, and personnel 
        that are involved. Not later than 2 years after the 
        date of the enactment of this paragraph, the Attorney 
        General shall report to Congress the results of that 
        study.
          (4) In this subsection--
                  (A) the term ``commercial provider'' means a 
                provider of electronic communication service 
                that offers Internet access capability for a 
                fee to the public or to such classes of users 
                as to be effectively available to the public, 
                regardless of the facilities used; and
                  (B) the term ``Internet'' has the same 
                meaning given that term in section 230(f) of 
                the Communications Act of 1934.

           *       *       *       *       *       *       *


Sec. 2707. Civil action

  (a) * * *

           *       *       *       *       *       *       *

  (e) Defense.--A good faith reliance on--
          (1) a court warrant or order, a grand jury subpoena, 
        a legislative authorization, or a statutory 
        authorization (including a request of a governmental 
        entity under section 2703(f), or the requirement to 
        retain records under section 2703(h), of this title);

           *       *       *       *       *       *       *


PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


CHAPTER 223--WITNESSES AND EVIDENCE

           *       *       *       *       *       *       *


Sec. 3486. Administrative subpoenas

  (a) Authorization.--(1)(A) In any investigation of--
          (i)(I) a Federal health care offense; or (II) a 
        Federal offense involving the sexual exploitation or 
        abuse of children, the Attorney General; [or]
          (ii) an unregistered sex offender conducted by the 
        United States Marshals Service, the Director of the 
        United States Marshals Service; or
          [(ii)] (iii) an offense under section 871 or 879, or 
        a threat against a person protected by the United 
        States Secret Service under paragraph (5) or (6) of 
        section 3056, if the Director of the Secret Service 
        determines that the threat constituting the offense or 
        the threat against the person protected is imminent, 
        the Secretary of the Treasury,

           *       *       *       *       *       *       *

  (D) As used in this [paragraph, the term] paragraph--
          (i) the term ``Federal offense involving the sexual 
        exploitation or abuse of children'' means an offense 
        under section 1201, 1591, 2241(c), 2242, 2243, 2251, 
        2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, in which 
        the victim is an individual who has not attained the 
        age of 18 years [.]; and
          (ii) the term ``sex offender'' means an individual 
        required to register under the Sex Offender 
        Registration and Notification Act (42 U.S.C. 16901 et 
        seq.).

           *       *       *       *       *       *       *

  (6)(A) A [United State] United States district court for the 
district in which the summons is or will be served, upon 
application of the United States, may issue an ex parte order 
that no person or entity disclose to any other person or entity 
(other than to an attorney in order to obtain legal advice) the 
existence of such summons for a period of up to 90 days.

           *       *       *       *       *       *       *

  (9) A subpoena issued under paragraph (1)(A)(i)(II) or 
[(1)(A)(ii)] (1)(A)(iii) may require production as soon as 
possible, but in no event less than 24 hours after service of 
the subpoena.
  (10) As soon as practicable following the issuance of a 
subpoena under [paragraph (1)(A)(ii)] paragraph (1)(A)(iii), 
the Secretary of the Treasury shall notify the Attorney General 
of its issuance.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 566 OF TITLE 28, UNITED STATES CODE

Sec. 566. Powers and duties

  (a) * * *

           *       *       *       *       *       *       *

  (e)(1) The United States Marshals Service is authorized to--
          (A) provide for the personal protection of Federal 
        jurists, court officers, witnesses, and other 
        threatened persons in the interests of justice where 
        criminal intimidation impedes on the functioning of the 
        judicial process or any other official proceeding; 
        [and]
          (B) investigate such fugitive matters, both within 
        and outside the United States, as directed by the 
        Attorney General[.]; and
          (C) issue administrative subpoenas in accordance with 
        section 3486 of title 18, solely for the purpose of 
        investigating unregistered sex offenders (as defined in 
        such section 3486).

           *       *       *       *       *       *       *


                            Dissenting Views

                            I. INTRODUCTION

    H.R. 1981, the ``Protecting Children From Internet 
Pornographers Act of 2011,'' is a seriously flawed bill. 
Although it purports to be a bill to protect children from 
Internet pornographers, its reach extends well beyond this goal 
and is not narrowly tailored to combat child pornography. It 
includes an expensive and dangerous data retention mandate that 
would compromise the privacy of all Americans and unnecessarily 
burden the telecommunications industry. In addition, this 
legislation vastly expands administrative subpoena power, 
circumventing both judicial oversight and supervision by the 
Attorney General.
    These problems, as well as additional concerns, have 
prompted more than 30 organizations to declare their strong 
opposition to H.R. 1981. These diverse organizations include 
religious groups, groups committed to the protection of civil 
liberties and privacy, advocates against domestic violence, and 
technology policy groups.\1\ Additional organizations and think 
tanks have also registered their opposition stating that, 
``H.R. 1981 . . . follows in the footsteps of repressive 
governments such as China, which recently enacted a similar 
retention mandate . . . to facilitate its suppression of 
dissidents.''\2\
---------------------------------------------------------------------------
    \1\Letter from Advocacy for Principled Action in Gov't; Am. 
Booksellers Fund. for Free Expression; ACLU; Am. Library Ass'n; Ass'n 
of Research Libraries; Bill of Rights Def. Comm.; Ctr. for Dem. & 
Tech.; Ctr. for Digital Dem.; Ctr. for Fin. Privacy & Human Rights; 
Ctr. for Media & Dem.; Ctr. for Nat'l Sec. Studies; Consumer Action; 
Consumer Fed. of Am.; Consumer Watchdog; Council on Am.-Islamic 
Relations; Defending Dissent Found.; Demand Progress; DownsizeDC.org, 
Inc.; Elec. Frontier Found.; Elec. Privacy Info. Ctr.; Friends of 
Privacy USA; Liberty Coalition; Muslim Pub. Affairs Council; Nat'l 
Ass'n of Crim. Def. Lawyers; Nat'l Workrights Inst.; Patient Privacy 
Rights; Privacy Activism; Privacy Journal, Robert Ellis Smith, 
Publisher; Privacy Rights Clearinghouse;and World Privacy Forum; to 
Rep. Lamar Smith, Chairman, and Rep. John Conyers, Jr., Ranking Member 
(July 27, 2011) (``Privacy Sign-On Letter'') (on file with H. Comm. on 
the Judiciary, Dem. Staff).
    \2\Letter from Competitve Enter. Inst., TechFreedom, & Am. for Tax 
Reform's Digital Liberty, to Rep. Lamar Smith, Chairman, and Rep. John 
Conyers, Ranking Member at 2 (n.d.) (``Free Enter. Coal. Letter'') (on 
file with H. Comm. on the Judiciary, Dem. Staff).
---------------------------------------------------------------------------
    For these reasons, and those discussed below, we 
respectfully dissent and urge our colleagues to reject this 
seriously flawed legislation.

  II. H.R. 1981'S DATA RETENTION MANDATE IS INTRUSIVE, EXPENSIVE, AND 
                              INEFFECTUAL

    Section 4 of H.R. 1981 provides that ``[a] commercial 
provider of an electronic communication service shall retain 
for a period of at least one year a log of the temporarily 
assigned network addresses the provider assigns to a subscriber 
to [sic] or customer of such service that enables the 
identification of the corresponding customer or subscriber 
information. . . .'' This principle is called ``data 
retention.''
    Data retention should be distinguished from data 
preservation, which is a request by law enforcement for an 
Internet Service Provider (``ISP'') to refrain from destroying 
specific data about a particular individual, on the basis of 
individualized suspicion that the subject of the request is 
involved in criminal activity.\3\ Data retention, by contrast, 
is a blanket requirement that ISPs keep data on every customer, 
including customers who have no connection to criminal 
activity. In the United States, where 70 percent of 309 million 
Americans have Internet access, this means approximately 230 
million Americans will be subject to the bill's data retention 
requirements,\4\ and almost none of these data will ever be 
useful in a criminal investigation.\5\ Even though section 4's 
data retention mandate is intrusive, expensive, ineffectual, 
and bad public policy,\6\ Representative Zoe Lofgren's (D-CA) 
amendment\7\ to strike this provision from the bill failed by a 
vote of 8 to15.\8\
---------------------------------------------------------------------------
    \3\Data Retention As a Tool for Investigating Internet Child 
Pornography and Other Internet Crimes: Hearing Before the H. Comm. on 
the Judiciary, 112th Cong. at 73 (2011) (``Data Retention Hearing'') 
(statement of Kate Dean, Exec. Dir., U.S. Internet Svc. Provider 
Ass'n).
    \4\Data Retention Hearing at 73 (statement of John Morris, Gen. 
Counsel, Ctr. for Dem. & Tech.).
    \5\Online Safety and Technology Working Group, Youth Safety on a 
Living Internet: Report of the Online Safety and Technology Working 
Group at 100 (2010) (``OSTWG Report''), available at http://
www.ntia.doc.gov/reports/2010/OSTWG_Final_Report_060410.pdf.
    \6\See generally, Memorandum from John Morris, Greg Nojeim, & Erica 
Newland, Ctr. for Dem. & Tech. (July 19, 2011) (``CDT Memo'') (on file 
with H. Comm. on the Judiciary, Dem. Staff); Letter from Laura W. 
Murphy, Director, D.C. Legis. Office, Christopher Calabrese, Legis. 
Counsel, & Jesseslyn McCurdy, Senior Legis. Counsel, ACLU, to Rep. 
Lamar Smith, Chairman, and Rep. John Conyers, Ranking Member (July 27, 
2011) (``ACLU Letter'') (on file with H. Comm. on the Judiciary, Dem. 
Staff).
    \7\Amdt. No. 6 to the bill.
    \8\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 75 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
---------------------------------------------------------------------------
A. LThe Data Retention Mandate Will Not Significantly Further Law 
        Enforcement Goals
    The bill's data retention mandate will not significantly 
improve law enforcement efforts, as analyzed by the 
Congressional Budget Office (CBO). According to the CBO, ``H.R. 
1981 would have a negligible impact on the number of offenders 
under federal incarceration because many of the offenders 
prosecuted under H.R. 1981 can be prosecuted under current 
law.''\9\
---------------------------------------------------------------------------
    \9\Cong. Budget Office, Cost Estimate for H.R. 1981 at 1 (Oct. 12, 
2011) (emphasis added).
---------------------------------------------------------------------------
    Nevertheless, supporters of the bill are all too willing to 
compromise privacy and burden industry for an untested, albeit 
laudable, concept. Although there is myriad anecdotal evidence 
and strong personal views about the critical nature of the 
data, there is no empirical evidence to indicate that this 
mandate will actually further law enforcement's goals in any 
significant way.\10\ To the contrary, the available data 
reveals that the status quo is working for industry and law 
enforcement alike and that a data retention mandate will 
exacerbate the current forensic evidence backlog crisis that 
law enforcement is already experiencing. In addition, we cannot 
ignore the fact that technology will cause numerous gaps in the 
gathering of this data that will severely undermine the purpose 
of the bill. The only goal the bill will actually further is 
that of compromising consumer privacy.
---------------------------------------------------------------------------
    \10\Free Enter. Coal. Letter at 2.
---------------------------------------------------------------------------
            1. LThe Current Data Preservation Tools Are Effective
    There is no consensus among either the law enforcement 
community or industry representatives that there is a need for 
a data retention mandate, despite a decade-long debate over 
data retention. Most recently, in 2008, Congress created the 
Online Safety and Technology Working Group (OSTWG) to, among 
other things, ``review and evaluate . . . the practices of 
electronic service providers and remote computing service 
providers related to record retention in connection with crimes 
against children.''\11\ The panel, which included industry 
representatives, issued a final report, concluding in part that 
``there is not--either within OSTWG or the broader community--
consensus on whether any data retention mandates should be 
imposed on service providers.''\12\ Indeed, while some law 
enforcement representatives favor the bill, the U.S. Department 
of Justice has not taken a position on H.R. 1981.\13\
---------------------------------------------------------------------------
    \11\See Pub. L. No. 110-385, 122 Stat. 4103, Sec. 214(a)(3).
    \12\OSTWG Report at 110.
    \13\Id. at 105, n.87.
---------------------------------------------------------------------------
    The available data suggests that the existing procedures 
for individualized data preservation on a specific customer\14\ 
are sufficient to provide law enforcement officials with the 
evidence they need to investigate and prosecute child 
exploitation offenses that occur on the Internet in about 80 
percent of cases\15\ and, in the remaining 20 percent of cases, 
law enforcement officials obtain the required evidence 
``through other means, such as by interviewing suspects at 
their residences or reviewing information on [suspects'] 
computers.''\16\ Moreover, industry representatives observe 
that data preservation tools are underutilized by law 
enforcement. If the preservation period is insufficient, a 
better solution would be to extend the data preservation period 
by perhaps another 180 days, rather than create a new mandate. 
Data preservation is an effective and, unlike data retention, 
targeted law enforcement tool, which is much more consistent 
with American values that citizens are entitled to a 
presumption of innocence and invasive law enforcement tools 
require individualized suspicion. Moreover, unlike data 
preservation, data retention can misdirect law enforcement 
efforts. While effective prosecution requires urgency and real-
time investigations, this bill focuses law enforcement's 
attention backward, toward mass amounts of stale, unusable 
information.
---------------------------------------------------------------------------
    \14\See 18 U.S.C. Sec. Sec. 2703(f) & 2258A(h) (requiring ISPs to 
preserve data on a particular customer, upon request of law 
enforcement, for up to 180 days).
    \15\Gov't Accountability Office, GAO-11-334, Combating Child 
Pornography: Steps are Needed to Ensure that Tips to Law Enfm't Are 
Useful and Forensic Examinations are Cost Effective at 44-45 (2011) 
(``GAO Report''), available at http://www.gao.gov/new.items/d11334.pdf.
    \16\Id. at 45.
---------------------------------------------------------------------------
    The bill's effectiveness is further undermined by the 
carve-out for the vast majority of information that is useful 
to law enforcement, specifically the data needed to identify 
users of free social networking, email and instant message 
services. The bill presumes that criminal activity occurs 
predominantly over paid accounts. Experience and common sense 
tell us that this type of activity occurs more commonly on free 
services.
            2. LThe Biggest Challenge to Investigating Child 
                    Exploitation Offenses is Not a Lack of Data, but a 
                    Backlog in Forensic Examinations
    H.R. 1981 will exacerbate the current backlog in forensic 
examinations. For example, during its study of the 
Prosecutorial Remedies and Other Tools to End the Exploitation 
of Children Today Act (``PROTECT'') Act,\17\ the Government 
Accountability Office (GAO) found that the biggest barrier to 
investigating and prosecuting child pornography and other 
online child exploitation cases was a backlog of digital 
forensic evaluations,\18\ not an inability to locate data from 
an ISP prior to its destruction. Considering the recent 
reduction in the number of investigators dedicated to child 
pornography and other online child exploitation cases,\19\ 
Congress would be better off dedicating more resources to law 
enforcement personnel.\20\ H.R. 1981, however, fails to 
authorize any such additional resources. In fact, when 
Representative Bobby Scott (D-VA) offered an amendment to 
appropriate funds for an additional 200 FBI agents, 30 
additional prosecutors, and 20 additional public defenders, 
Committee Chairman Smith argued against the amendment and it 
was defeated by a 7 to 11 vote.\21\
---------------------------------------------------------------------------
    \17\Pub.L. 108-21, 117 Stat. 650 (2003).
    \18\GAO Report at 36-40. This backlog was partly a result of a 
3000% increase in the amount of data that law enforcement had to 
review, and leading to delays in the analysis of suspects' computers of 
up to a year. Id. at 35-36.
    \19\Id. at 50, 57 (reduction in both FBI and U.S. Postal Inspectors 
personnel dedicated to child pornography cases). Accordingly, the 
number of child pornography prosecutions is also decreasing. Id. at 9-
10.
    \20\CDT Memo at 4-5.
    \21\Tr. of Markup of H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 87 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
---------------------------------------------------------------------------
    The problem is not the lack of information provided to law 
enforcement. For instance, ISPs provided 248,000 tips through 
the Cyber Tipline from January 1, 2008 to December 31, 
2010,\22\ but federal law enforcement agencies only 
investigated a fraction of these tips during the same\23\ 
period: 17,799\24\ investigations by the FBI, 8,414\25\ by ICE, 
684\26\ by the Postal Inspectors, and 424\27\ by the Secret 
Service. Giving law enforcement even more data to sort through 
will not further the goal of safeguarding our children against 
Internet pornographers, particularly when there is no 
willingness to provide more personnel. As Representative Scott 
stated at the markup, ``When the problem is finding the needles 
in the haystacks of information . . . , the priority should not 
be adding more hay.''\28\
---------------------------------------------------------------------------
    \22\GAO Report at 9-10.
    \23\The CyberTipline numbers are reported by calander year (January 
1 to December 31), while the investigations numbers are reported by 
fiscal year (October 1 to Sept 30 of the following year).
    \24\GAO Report at 51 (computed by adding together the numbers for 
FY2008, FY2009, and FY2010).
    \25\Id. at 55 (computed by adding together the numbers for FY2008, 
FY2009, and FY2010).
    \26\Id. at 57(computed by adding together the numbers for FY2008, 
FY2009, and FY2010).
    \27\Id. at 56 (computed by adding together the numbers for FY2008, 
FY2009, and FY2010).
    \28\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 81 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
---------------------------------------------------------------------------
            3. LThe Nature of Current Technology and Limitations 
                    Imposed by H.R. 1981 will Prevent Millions of IP 
                    Addresses from being Retained
    Even if there was a demonstrated need for data retention, 
the mandate imposed by H.R. 1981 is wholly ineffective. 
Specifically, the nature of our current technology, as well as 
limitations built into the bill, would cause millions of 
Internet users to escape the reach of the mandate.
              i. LTor
    One example of such technology is Tor\29\--a simple, free 
software application originally developed as a project of the 
U.S. Naval Research Laboratory.\30\ Tor routes a user's 
Internet traffic through a series of secure tunnels (the ``Tor 
network'') before passing it off to the user's final 
destination, using layers of concentric encryption in such a 
way that obscures: (1) the destination and content of users' 
traffic from the user's ISP, and (2) the users' identity and 
location from the user's website or other Internet destination 
the user intends to access.\31\ Tor's goal is to allow people 
to browse and communicate over the Internet without being 
tracked or monitored, even by their ISP or by law enforcement.
---------------------------------------------------------------------------
    \29\Tor Project, http://www.torproject.org.
    \30\U.S. Naval Research Lab, Onion Routing, http://www.onion-
router.net.
    \31\The Tor Project, which provides the software and operates the 
network of tunnels, has a more comprehensive, illustrated explanation. 
Tor Project, Tor: An Overview, http://www.torproject.org/about/
overview.html.en.
---------------------------------------------------------------------------
    Among its many uses, Tor enables child pornography 
traffickers to avoid detection and identification while they 
trade their illicit media. Law enforcement with access to an 
ISP's retained data on a Tor user can discern only one thing: 
that a given user connected to the Tor network. Law enforcement 
would not be able to discern the content of the user's 
communications over the Internet (e.g., whether the user's 
Internet traffic contained child pornography) nor would law 
enforcement be able to track down the user's ultimate 
destination beyond the Tor network (e.g., whether the user was 
visiting a child pornography website). Also, law enforcement 
could not work backwards to discover the identity and location 
of a Tor-using child pornography consumer using a list of 
computers known to have accessed a child pornography 
distributor. All that law enforcement would discover is that a 
computer from the Tor network accessed the distributor, but 
could not penetrate the Tor network to determine the identity 
or location of the actual user trafficking the child 
pornography.
    ``Unfortunately, nobody has explained to Congress that 
tech-savvy criminals can easily evade detection even if ISPs 
are required to retain data, by using such anonymity tools as 
TOR [sic]. . . .''\32\ H.R. 1981's data retention mandate does 
nothing to eliminate the ability of child pornographers to use 
Tor to ply their illicit trade. H.R. 1981 applies only to 
``commercial provider[s] of an electronic communication 
service,'' that is, services that ``offer[] Internet access for 
a fee,'' but Tor neither provides Internet access by itself, 
nor charges a fee. This is a gaping hole in the data retention 
regime, and would ensure that anyone could avoid the data 
retention mandate simply by downloading and using a simple--and 
free--software program.
---------------------------------------------------------------------------
    \32\Julian Sanchez, Congress out to spy on your `puter, N.Y. Post 
(July 31, 2011), available 
at http://www.nypost.com/p/news/opinion/opedcolumnists/
congress_out_to_spy_on_your_
puter_z8eadkV4ktqtKfanoon1eL.
---------------------------------------------------------------------------
    Before Congress rushes to criminalize it, we must recognize 
that Tor has myriad legitimate uses. It is accessed by law-
abiding users who want to utilize the Internet anonymously and 
avoid detection or monitoring, while still exercising their 
First Amendment rights.\33\ Pro-democracy dissidents in China 
use Tor to circumvent the ``Great Firewall of China'' and 
publish pro-democracy content. Journalists use Tor to privately 
and securely communicate with their sources. U.S. law 
enforcement uses Tor to conduct Internet surveillance or 
Internet-based sting operations without fear that the targets 
will discover the law enforcement officers' identities. 
Whistleblowers use Tor to call attention to wrongdoing or 
malfeasance in their organizations without fear that their 
organization will eventually track down and retaliate against 
the whisteblower.
---------------------------------------------------------------------------
    \33\Tor Project, Who Uses Tor?, http://www.torproject.org/about/
torusers.html.en.
---------------------------------------------------------------------------
    Unless H.R. 1981 is applied to Tor, child pornographers 
will be able to anonymize their Internet usage and circumvent 
the goal of the bill. This false choice between targeting child 
pornographers and protecting the First Amendment rights of law 
abiding citizens perfectly illustrates why the data retention 
mandate is unworkable and ineffective.
              ii. LComplimentary Wireless Internet Access
    The proliferation of free Internet usage means that 
millions of users will be exempted from the mandate, which 
requires only fee based services to retain data. A host of 
businesses provide free wireless Internet access to their 
guests as a courtesy, including coffee shops, hotels, fast food 
restaurants, airlines, passenger rail, public libraries, 
universities, and even some law firms and doctors' offices. As 
reported, H.R. 1981 exempts all of these organizations from the 
data retention mandate, because they do not offer Internet 
access ``for a fee.''
    By only requiring ISPs that ``offer Internet access 
capability for a fee'' to retain information, the bill fails to 
recognize the nuance inherent in distinguishing free versus 
paid business models. It creates an arbitrary distinction that 
means two identical entities are subject to a vastly different, 
and costly, government mandate depending on whether they charge 
for use of the Internet. For example, a hotel, under this law, 
that directly charges a customer for Internet access would be 
required to retain data while a hotel that provides free access 
(meaning the cost is built into the room rate) would not. Not 
only is there no rational basis for this type of distinction, 
but it could motivate some businesses not to charge for their 
services, to avoid the burden of complying with the mandate. 
Similarly, universities, in-flight Internet, coffee houses, 
rail service and other ISP services would either fall under or 
be exempt from this law based only on their current business 
model.
    Further yet, child predators eager to avoid the law's reach 
will have an incentive to spend time in places where children 
typically congregate, such as public libraries and McDonald's 
restaurants. For example, McDonald's, which is a popular family 
destination, has 11,500 United States locations that provide 
free wireless internet. By placing these locations outside the 
reach of the data retention mandate, H.R. 1981 ``will encourage 
sexual predators to visit McDonald's restaurants in order to 
share their illicit contraband online,'' even though such 
``restaurants [are] packed with innocent children. . . .''\34\
---------------------------------------------------------------------------
    \34\Christopher Soghoian, Grad. Fellow at the Ctr. for Applied 
Cybersecurity Research at Ind. Univ., Unhappy meal: Data retention bill 
could lure sex predators into McDonalds, libraries, Ars Technica: Law & 
Disorder Blog (July 11, 2011), available at http://arstechnica.com/
tech-
policy/news/2011/07/unhappy-meal-data-retention-bill-could-lure-sex-
predators-into-mcdonalds-
libraries.ars.
---------------------------------------------------------------------------
B. LThe Data Retention Mandate Seriously Infringes on the Legitimate 
        Privacy Interests of Everyday Consumers
    The data retention mandate is a substantial infringement on 
privacy rights, particularly when one considers that the vast 
majority of people using the Internet are innocent, law-abiding 
individuals.\35\ The legislation mandates the retention of 
extremely sensitive and detailed personal information\36\ that 
could be misused, fall into the wrong hands or be inadvertently 
or carelessly disclosed. Despite these risks, H.R. 1981 has no 
significant protections to protect sensitive personal 
information from abuse by industry or the government.
---------------------------------------------------------------------------
    \35\Like industry, privacy experts also believe that the approach 
set forth in Sec. 2703(f) is better, because it targets those suspected 
of wrongdoing, rather than innocent users of the Internet. See OSTWG 
Report at 113.
    \36\See ACLU Letter at 2; CDT Memo at 2.
---------------------------------------------------------------------------
            1. LThe Scope of the Data Retention Mandate is Overly Broad
    By requiring paid ISPs to retain all IP data that can 
``enable the identification of the customer,'' H.R. 1981 will 
force companies to retain a broad swath of private data about 
consumers pertaining to, among other things, their private 
communications, location and web-surfing activity. Once 
retained by ISPs, law enforcement need only meet a minimal 
standard to obtain this data--private, personal information 
including IP addresses, corresponding user identifying 
information and transactional data--because the data is subject 
to subpoena, without notice to the user or any judicial 
action.\37\ Furthermore, this mandate would create a treasure 
trove of consumer information that would be susceptible to a 
data breach.
---------------------------------------------------------------------------
    \37\OSTWG Report at 114; see also 18 U.S.C. Sec. 2703(c)(2) and 18 
U.S.C. Sec. 2703(c)(3).
---------------------------------------------------------------------------
    The overly broad data retention mandate will also eliminate 
competition between companies with respect to privacy. Some 
consumers place a high premium on privacy and choose a 
telecommunications company based upon the rigor of their 
privacy policies, such as the ability to opt-out of having 
their web-surfing information tracked or stored. These policies 
recognize the consumer's right to maintain control over their 
information and are an important tool in securing user trust. 
By mandating the retention of all IP addresses in an 
identifiable format, H.R. 1981 would take away the discretion 
that ISPs currently have to tailor their privacy policies to 
the needs of consumers.
            2. LThe 12-Month Data Retention Period is Excessive
    Some ISPs already retain data on their customers' IP 
addresses for varied amounts of time as part of their normal 
business practices.\38\ H.R. 1981, however, would mandate a 12-
month data retention period for all ISPs, even though the 
National Cable and Telecommunications Association (``NCTA'') 
reports that no law enforcement agency has ever requested data 
from their members that is more than 3 months old. In fact, 
``in Europe--where the Data Retention Directive requires that 
providers retain all sorts of data for a 6-24 month period--
studies have made clear that the usefulness of retained data 
for law enforcement investigations falls off sharply after 6 
months and again after twelve months.''\39\
---------------------------------------------------------------------------
    \38\OSTWG Report at 103.
    \39\CDT Memo at 4.
---------------------------------------------------------------------------
    Given the privacy interests implicated by such a long 
retention window and the fact that law enforcement practice is 
not to request stale data, Representative Scott offered an 
amendment\40\ to reduce the retention period to 180 days, from 
1 year. Unfortunately, the Committee defeated this amendment by 
a 12 to 14 vote.\41\
---------------------------------------------------------------------------
    \40\Amdt. No. 1 to the Manager's Amdt.
    \41\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 69 (July 27, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2027%2011%20HR%
202633%20HR%201981.pdf.
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            3. LThe Bill Fails to Provide Even Minimal Transparency for 
                    a Major Expansion of Law Enforcement Surveillance 
                    Powers
    This sweeping new data retention mandate also raises the 
possibility of government overreach and abuse, far beyond what 
is necessary to stop child exploitation. However, H.R. 1981 
lacks any safeguards or reporting requirement that would ensure 
that both Congress and the public have a way to know how often 
the government is demanding Internet user data and whether 
those demands are being put to uses beyond tracking child 
pornographers.
    Representative Zoe Lofgren offered an amendment that would 
have guaranteed a minimum of transparency for this major 
expansion of law enforcement surveillance powers. The amendment 
would have required a report on law enforcement's requests for 
historical information from providers that includes the number 
of requests that law enforcement made, the types of cases, and 
the results of such requests. This report would have been 
similar to the annual Wiretap Report that the Administrative 
Office compiles, on the volume and nature of government wiretap 
applications.\42\ The Committee defeated Representative 
Lofgren's amendment\43\ by by a vote of 9 to 15.\44\
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    \42\Cf. 18 U.S.C. Sec. 2519 (Reports concerning Intercepted Wire, 
Oral, or Electronic Communications).
    \43\Amdt. No. 8 to the bill.
    \44\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 100 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%
20HR%201981%20HR%201433.pdf.
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C. LThe Data Retention Mandate Imposes Significant Costs on the Private 
        Sector
    The costs of complying with H.R. 1981 will be onerous for 
the private sector. In fact, the Congressional Budget Office 
estimates that the aggregate cost of the mandate on the private 
sector would be more than $200 million.\45\ This amount exceeds 
the threshold set by the Unfunded Mandates Reform Act for 
private sector mandates. Much, if not all, of this cost will 
likely be passed on to consumers by ISPs in the form of fees or 
higher rates.\46\
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    \45\Cong. Budget Office, Cost Estimate for H.R. 1981 at 2 (Oct. 12, 
2011).
    \46\Free Market Coalition Letter at 1(``[C]onsumers themselves 
[will] ultimately bear most of the costs incurred by companies in 
complying with the data retention mandate.'').
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    Industry representative argue that the actual cost to the 
private sector and consumers may be much higher than the CBO 
estimates. The cost of compliance with the data retention 
mandate could be $1.6 billion because of the transition from 
using IPv4 to IPv6\47\ and the greater difficulty in 
maintaining data about customers under IPv6\48\ than under the 
currently-used IPv4, the cost of compliance with the data 
retention mandate could be $1.6 billion. The U.S. Internet 
Service Provider Association (``USISPA'') estimates that the 
cost of implementing and operating H.R. 1981's retention 
requirement over 5 years would be $500 million. The European 
Union's experience is also telling. According to Finland's 
Ministry of the Interior, if the original proposal had been 
adopted it would have involved costs of about $5.5 billion Euro 
for his country.\49\
---------------------------------------------------------------------------
    \47\See generally Robert Cannon, FCC, FCC Working Paper 3, 
Potential Impacts on Commc'ns From IPv4 Exhaustion & IPv6 Transition 
(Dec. 2010).
    \48\See id. at 25 (``These solutions [to various problems arising 
due to the transition to IPv6], however, break end-to-end connectively 
and make it difficult to map specific IP numbers to individual end 
users. IP numbers may map to carrier grade NAT boxes which may have 
behind them many households, neighborhoods, or even towns, making it 
difficult to know to whom an IP address belongs.'').
    \49\``Data Retention Directive: reactions related to the costs 
involved,'' 18 January, 2006, available at http://www.edri.org/
edrigram/number4.1/dataretentioncosts (last accessed October 14, 2011)
---------------------------------------------------------------------------
    H.R. 1981 would require ongoing costs, in addition to the 
``costs the provider would incur to design and install the data 
systems that would be required by the bill.''\50\ For example, 
AOL considered a smaller ISP with only about 4 million 
customers, estimates that it issues more than 50 million IP 
addresses per day. AOL's costs under H.R. 1981 will not only 
include creating, maintaining, and securing\51\ the 
infrastructure to store the 50 million specific IP addresses 
created per day, and all of the related required information, 
but also creating and maintaining similar infrastructure to 
sort and search through all that data with the speed and 
precision law enforcement will demand.
---------------------------------------------------------------------------
    \50\Cong. Budget Office, Cost Estimate for H.R. 1981 at 2 (Oct. 12, 
2011).
    \51\See OSTWG Report at 111 (noting that data retained under the 
bill ``would present new and unparalleled risks to privacy and 
security''); see also Free Enter. Coal. Letter at 2.
---------------------------------------------------------------------------
    H.R. 1981's unfunded private sector mandate will hit small 
and rural providers especially hard, driving some of them out 
of business and leaving some rural residents without any 
Internet provider.\52\ According to National Telecommunications 
Cooperative Association (``NTCA''), rural Internet providers 
``are small businesses that operate on thin margins and lack 
the economies of scale to absorb a large, sudden cost,'' in 
part because they ``serve areas where there is no business case 
for service and where others refuse to serve.''\53\ If the high 
cost of H.R. 1981's regulatory mandate drives rural providers 
out of business,\54\ ``there [will] typically be no provider 
ready to step in and provide the kind of area-wide service that 
the local and national economies rely on.''\55\
---------------------------------------------------------------------------
    \52\See Letter from Shirley Bloomfield, CEO, National 
Telecommunications Cooperative Association to Rep. Lamar Smith, Chair 
(July 26, 2011) (``NTCA Letter'') at 1; see also Letter from Levi C. 
Maaia, Vice President of Full Channel (July 8, 2011).
    \53\NTCA Letter at 1.
    \54\See, e.g., CDT Memo at 3.
    \55\NTCA Letter at 1.
---------------------------------------------------------------------------
    To help ISPs deal with an unfunded mandate that could range 
from $200 million to $1.6 billion, Representative Lofgren 
offered an amendment\56\ to clarify that the bill would not 
require any ISP to collect any information which it was not 
already collecting for business purposes. The committee 
defeated this amendment by a vote 7 to 16.\57\
---------------------------------------------------------------------------
    \56\Amdt. No. 38 to the bill.
    \57\Tr. of Markup of H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 137 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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D. LThe Data Retention Mandate Endangers Victims of Domestic Violence, 
        Sexual Assault, and Stalking
    For domestic violence victims and other victims of stalking 
and sexual assault, the data retention mandate increases their 
risk of further abuse.\58\ Cindy Southworth, founder of the 
Safety Net Technology Project at the National Network to End 
Domestic Violence, cites the example of a domestic violence 
victim whose abuser subpoenaed her cell-phone records, after 
the victim went into hiding across the country.\59\ Armed with 
these cell phone records, the abuser found out where the victim 
lived, worked, and which friends and family she called for 
support.\60\ H.R. 1981's data retention mandate creates another 
trove of information for abusers to mine for information on 
their victims, putting victims at risk.\61\
---------------------------------------------------------------------------
    \58\Letter from National Network to End Domestic Violence to 
Representative Lamar Smith, Chairman, and Representative John Conyers, 
Jr., Ranking Member at 1 (July 26, 2011) (on file with H. Comm. on the 
Judiciary, Dem. Staff).
    \59\Id.
    \60\Id.
    \61\Id.
---------------------------------------------------------------------------
    Although the bill, as reported, provides that only 
``governmental entities'' may access the retained data, this 
will not prevent malicious abusers and stalkers from illegally 
obtaining the data by impersonating a law enforcement agent and 
conning ISP employees into turning over the confidential data 
to the stalker or abuser. In fact, Congress has already 
recognized that this so-called ``pretexting'' is a problem when 
it comes to phone call records.\62\ In response, the Law 
Enforcement and Phone Privacy Protection Act of 2006\63\ was 
enacted to criminalize this conduct and provide increased 
penalties. There is no reason to suggest that the stalkers and 
abusers of domestic violence victims will have any more trouble 
obtaining Internet records than phone records. Once armed with 
this information, a stalker or abuser can locate their intended 
victim, even after that victim has gone into hiding. 
Accordingly, the mere existence of this retained data is a 
threat to victims of domestic violence and stalking.
---------------------------------------------------------------------------
    \62\See H.R. Rep. 109-395 at 2-3 (2006) (discussing 
``pretexting'').
    \63\Pub. L. No. 109-476, 120 Stat. 3568 (codified at 18 U.S.C. 
Sec. 1039).
---------------------------------------------------------------------------
E. LDespite its Stated Purpose, H.R. 1981 Is Not Limited to Child 
        Pornography Offenses
    While the stated goal of H.R. 1981 is to combat Internet-
based child pornography and other child exploitation cases, it 
is not limited to such cases. There is nothing in the bill to 
prevent law enforcement from using the data for investigations 
of any crime from terrorism\64\ to the unlawful interstate 
transport of water hyacinths,\65\ and even in intelligence 
gathering operations, which generally do not require disclosure 
to the target.
---------------------------------------------------------------------------
    \64\See 18 U.S.C. Sec. 2332b.
    \65\See 18 U.S.C. Sec. 46.
---------------------------------------------------------------------------
    This kind of ``mission creep'' is hardly unprecedented. 
When Congress passed the ``sneak and peak'' provisions of the 
Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (``USA 
PATRIOT'') Act of 2001\66\ in the wake of the September 11th 
terrorist attacks, it intended for the provision to be used in 
terrorism investigations. And yet, of the 763 ``sneak and 
peak'' warrants issued between October 1, 2007 and September 
30, 2008, only 3 were terrorism-related;\67\ the biggest 
category was narcotics investigations, for which 474 sneak-and-
peak warrants were issued.\68\
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    \66\Pub. L. No. 107-56 Sec. 213, 115 Stat. 272, 286, codified at 18 
U.S.C. Sec. 3103a.
    \67\See James C. Duff, Director, Admin. Office of the U.S. Courts, 
Report of the Director of the Admin. Office of the U.S. Courts on 
Applications for Delayed-Notice Search Warrants & Extensions (2009) at 
6, available at http://big.assets.huffingtonpost.com/
SneakAndPeakReport.pdf.
    \68\Id.
---------------------------------------------------------------------------
    Knowing that law enforcement will have such broad access to 
their personal data, with no restrictions on the reason for 
obtaining it, Internet users may alter their usage habits, even 
if entirely legal. A gay or lesbian student may not want to 
find a support group to help him or her through bullying; a 
woman who felt a lump in her breast may avoid looking up 
medical information on breast cancer; a political activist may 
avoid organizing supporters online out of the fear that 
complete strangers may discover their perfectly legitimate, but 
private, activities.
    Even the bill's short title is misleading.\69\ 
Representative Zoe Lofgren (D-CA) sought to amend the title to 
reflect what the bill actually does, ``Keep Every American's 
Digital Data for Submission to the Federal Government Without a 
Warrant Act of 2011.'' This amendment, however, was rejected by 
the Committee by a vote of 9 to18.\70\
---------------------------------------------------------------------------
    \69\``If Congress had to name laws honestly, [H.R. 1981] would be 
called the `Forcing Your Internet Provider to Spy On You Just In Case 
You're a Criminal Act of 2011'. . . .'' Julian Sanchez, Congress out to 
spy on your `puter, N.Y. Post (July 31, 2011), available at http://
www.nypost.com/p/news/opinion/opedcolumnists/
congress_out_to_spy_on_your_puter_z8eadkV4ktqtKfanoon1eL; see also Jim 
Harper, Moral Panic & Your Privacy, [email protected] (July 11, 2011), 
available at http://www.cato-at-liberty.org/moral-panic-and-your-
privacy.
    \70\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 148 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%
201981%20HR%201433.pdf.
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F. LH.R. 1981 Contains An Unconstitutional Limitation on Access to 
        Personal Data
    The bill, as reported, includes a provision limiting access 
to the data retained under section 4 to ``governmental 
entities.''\71\ This language was added in an attempt to 
address concerns that, once ISPs are required to maintain this 
data, private parties, such as divorce lawyers, insurance 
companies, bill collectors, or marketing companies, could also 
access the data. The limitation on access to ``governmental 
entities,'' however, would also preclude criminal defendants 
from accessing this information because they are not 
``governmental entities.'' Under the Constitution, however, 
criminal defendants are entitled to receive all evidence 
favorable to them and a restriction on access to that data 
violates the defendants' right to due process.\72\ This 
limitation will not withstand judicial scrutiny.
---------------------------------------------------------------------------
    \71\``As used in [inter alia, 18 U.S.C. Sec. 2703, the U.S. Code 
section amended by H.R. 1981 Sec. 4], the term `governmental entity' 
means a department or agency of the United States or any State or 
political subdivision thereof.'' 18 U.S.C. Sec. 2711.
    \72\``Under the Due Process Clause of the Fourteenth Amendment, 
criminal prosecutions must comport with prevailing notions of 
fundamental fairness. We have long interpreted this standard of 
fairness to require that criminal defendants be afforded a meaningful 
opportunity to present a complete defense. To safeguard that right, the 
Court has developed `what might loosely be called the area of 
constitutionally guaranteed access to evidence.''' California v. 
Trombetta, 467 U.S. 479, 485 (1984) (quoting United States v. 
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
---------------------------------------------------------------------------

     III. H.R. 1981 CONTAINS AN UNNECESSARY AND BROAD EXPANSION OF 
                     ADMINISTRATIVE SUBPOENA POWER

    Section 11 of H.R. 1981 grants the United States Marshals 
Service (``USMS'') administrative subpoena power in cases 
involving unregistered sex offenders.\73\ This unprecedented 
expansion of administrative subpoena power circumvents the 
normal, judicially-supervised subpoena process and grants the 
USMS unfettered authority to investigate cases that do not even 
deal with child pornography.\74\
---------------------------------------------------------------------------
    \73\Persons convicted of certain sex-related federal crimes are 
required to register with the federal government. See Adam Walsh Child 
Protection and Safety Act of 2006, Title I, Pub. L. No. 109-248, 120 
Stat. 587 (codified at 42 U.S.C. 16901 et seq.).
    \74\``Administrative subpoenas are an improvisation to accommodate 
the massive power of the bureaucracy, and they've become another end-
run around the Fourth Amendment.'' Jim Harper, Moral Panic and Your 
Privacy, [email protected] (July 11, 2011 5:02pm), available at http://
www.cato-at-liberty.org/moral-panic-and-your-privacy.
---------------------------------------------------------------------------
    Under current law, the Attorney General already has the 
authority to issue administrative subpoenas in investigations 
of ``a Federal offense involving the sexual exploitation or 
abuse of children. . . .''\75\ Section 11 would allow the USMS 
to issue administrative subpoenas, not to investigate actual 
offenses against children, but to investigate nonregistration 
of former offenders ``even if [the nonregistered offender] is 
not suspected of any new sex crime,''\76\ and even though there 
is no difference in recidivism rates between former offenders 
who comply with registration requirements and former offenders 
who do not.\77\
---------------------------------------------------------------------------
    \75\18 U.S.C. Sec. 3486(a)(1)(A)(i)(II).
    \76\ACLU Letter at 5.
    \77\Reauthorization of the Adam Walsh Act: Hearing Before the H. 
Comm. on the Judiciary, Serial No. 112-12, 112th Cong., at 63 (Feb. 15, 
2011) (statement of Dawn Doran, Dep. Dir., Sex Offender Sentencing, 
Monitoring, Apprehending, Registering, and Tracking (SMART) Office, 
U.S. DOJ).
---------------------------------------------------------------------------
    Further, this bill would allow the USMS itself to issue 
subpoenas without oversight from either the Attorney General or 
the courts. This broad delegation of unsupervised power to 
lower-level executive officials is without precedent. As a 
result of this provision, the USMS would have even more 
authority than the Secret Service when confronted with an 
imminent threat against a President, when there is simply no 
exigency warranting such extraordinary power. As Assistant 
Attorney General Robert Rabin explained in 2000:

        The administrative subpoena power . . . reflects a 
        delicate balancing of law enforcement, oversight, and 
        privacy needs and issues, all within the limited 
        context of health care fraud investigations. This 
        [provision] . . . was part of a special health care 
        fraud and abuse initiative. . . . [It] was not 
        anticipated to serve as a vehicle by which to expand 
        administrative subpoena authority to other Cabinet 
        officers for special types of investigations unrelated 
        to health care fraud.\78\
---------------------------------------------------------------------------
    \78\Letter from Robert Raben, Ass't Att'y Gen., to Rep. Henry Hyde, 
Chairman, H. Comm. on the Judiciary (June 9, 2000), quoted in H.R. Rep. 
106-669, at 14-15 (2000).

    Even if it could be demonstrated that the USMS needed this 
extraordinary power, the appropriate way to grant this 
authority would be to have the cabinet-level Attorney General--
not the lower-level director of the USMS--issue these 
administrative subpoenas, as is done with the Secret Service. 
Unfortunately, when Representative Scott offered an 
amendment\79\ to accomplish this result, the Committee defeated 
it by voice vote.\80\ And when Mr. Sensenbrenner offered an 
amendment\81\ to strike both sections containing the subpoena 
authority, the Committee defeated it by a vote of 10 to 17.\82\
---------------------------------------------------------------------------
    \79\Amdt. No. 11 to the bill.
    \80\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 122 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%
201981%20HR%201433.pdf.
    \81\Amdt. No. 3 to the bill.
    \82\Tr. of Markup on H.R. 1981: Before the H. Comm. on the 
Judiciary, 112th Cong. at 42 (July 28, 2011), available at http://
judiciary.house.gov/hearings/pdf/7%2028%2011%20HR%201981%
20HR%201433.pdf.
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                             X. CONCLUSION

    H.R. 1981 contains numerous problematic provisions, many of 
which--including the data retention mandate--will do little to 
further the goal of apprehending child pornographers. Instead, 
this legislation would compromise the privacy of all Americans 
and unnecessarily burden the telecommunications industry, all 
under the guise of protecting children. The bill contains an 
intrusive and expensive data retention mandate that threatens 
the privacy of Internet users everywhere. In addition, H.R. 
1981 dramatically expands administrative subpoena power, 
circumventing judicial oversight. For these reasons, we 
respectfully dissent.

                                   John Conyers, Jr.
                                   Robert C. ``Bobby'' Scott.
                                   Zoe Lofgren.
                                   Henry C. ``Hank'' Johnson, Jr.