House and Senate Pass Conference Report on Child Protection Bill

April 10, 2003. The House and Senate both passed the conference report [118 pages PDF] on S 151, the "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003", or "PROTECT Act". The House passed the bill by a vote of 400-25. See, Roll Call No. 127. The Senate passed the bill by a vote of 98-0. See, Roll Call No. 132. The bill contains several tech related items, including a ban on use of certain misleading domain names, provisions pertaining to computer generated images, and an expansion of the list of offenses that may serve as a predicate for the issuance of a wiretap order.

S 151 was originally passed by the Senate on February 24, 2003 by a vote of 84-0. See, Roll Call No. 35. The House passed its version of the bill, HR 1104, on March 27, 2003 by a vote of 410-14. See, Roll Call No. 89. The two versions were different, thus requiring a conference. The conference committee issued its report on April 7. The report, which is numbered H. Rept. 108-66, is also published in the Congressional Record, April 9, 2003, at H2950 et seq. See also, section by section summary of bill provided by House Judiciary Committee.

This is a long and wide ranging bill pertaining to the investigation, prosecution and punishment of offenses relating to children and pornography. It includes, at  301-305, provisions establishing a national Amber Alert communications network to facilitate the recovery of abducted children. It also includes provisions pertaining to detention, sentencing and supervised release of child sex offenders. It also eliminates the statute of limitations for child abduction and child sex crimes. It also provides increased support for the National Center for Missing and Exploited Children, and creates a new cyber tipline. It also contains provisions regarding the registration of child pornographers and sex offenders.

Misleading Domain Names. 521 of the conference report, which is also known as the "Truth in Domain Names Act", provides that "Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both". It further provides that "Whoever knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both."

Rep. Mike PenceThis provision was originally offered as a stand alone bill, HR 939, sponsored by Rep. Mike Pence (R-IN). Rep. Pence (at right) offered his bill an amendment to HR 1104 during House consideration of the bill. The House approved it by a voice vote.

Predicate Offenses for Wiretap Orders.  201 of the conference report amends 18 U.S.C. 2516 to expand the list of offenses that may serve as predicates for the issuance of a court order authorizes a wiretap. Currently, the list is short. The USA PATRIOT Act expanded the list to include offenses pertaining to terrorism. The conference report adds offenses pertaining to sex crimes against children, and child obscenity and pornography.

Computer Generated Images.  501-513 of the conference report pertain to child obscenity and pornography prevention. These sections are, in part, a response to the Supreme Court's April 16, 2002, opinion [PDF] in Ashcroft v. Free Speech Coalition, in which the Court held unconstitutional on First Amendment and overbreadth grounds provisions of the Child Pornography Prevention Act of 1996 (CPPA) banning computer generated images depicting minors engaging in sexually explicit conduct.  501-513 reflect a compromise between the House and Senate versions of the bill.

The problem is that the Supreme Court's opinion opened the door for all digital child pornographers to escape conviction by falsely asserting that their images are computer generated. This is an assertion that is difficult for prosecutors to disprove beyond a reasonable doubt.

The House had passed a stand alone bill on this subject in the 107th Congress -- HR 4623, the "Child Obscenity and Pornography Prevention Act of 2002". However, the Senate did not pass this bill. Rep. Lamar Smith (R-TX) reintroduced a similar bill in the current (108th) Congress as HR 1161, the "Child Obscenity and Pornography Prevention Act of 2003". He also offered the language of this bill as an amendment to HR 1104 on March 27, 2003. The House approved it by a vote of 406-15. See, Roll Call No. 88.

The gist of the House approach has been to restate the ban, but provide as an affirmative defense the argument that no children were actually used. That is, it shifts the burden of proof on the issue of virtual pornography from the prosecution to the defense. The language in the conference report maintains the House approach of burden shifting.

The CPPA expanded the federal prohibition on child pornography to encompass new technologies. 18 U.S.C. 2256, the section containing definitions, was amended to provide that child pornography means "any visual depiction, including any photograph, film, video, picture, or computer or computer- generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct;"

The conference report amends  2256(8)(B) to read "such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct;"

Then, the conference report provides that "It shall be an affirmative defense ... that ... the alleged child pornography was not produced using any actual minor or minors."

Sen. Patrick LeahySen. Patrick Leahy (D-VT) (at right) stated that the conference report "attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children.  Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography -- i.e. that it was made using computers." See, Leahy statement. Sen. Leahy was a cosponsor of the Senate version of the bill, and a member of the conference committee.

"The final bill includes the House provision on banning virtual and non-obscene child pornography, a provision that I have counseled against in both bills because it renders the bill weaker against constitutional attack", said Sen. Leahy. "At the same time, I was pleased the House agreed to accept provision I authored that protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense."

He added that "This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision."

See also, story titled "House Subcommittee Holds Hearing on Computer Generated Porm" in TLJ Daily E-Mail Alert No. 423, May 2, 2002; story titled "House Judiciary Committee Supports Ban on Computer Generated Child Porn" in TLJ Daily E-Mail Alert No. 454, June 19, 2002; story titled "Crime, the Internet and Computer Generated Images", TLJ Daily E-Mail Alert No. 522, October 3, 2002; and story titled "House Subcommittee Holds Hearing on HR 1161", TLJ Daily E-Mail Alert No. 621, March 12, 2003.

Bush Will Sign Bill. President Bush released a statement after passage of the conference report in which he said that "I applaud the House and Senate for passing bipartisan legislation that provides us with additional tools to prevent, investigate, and prosecute violent crimes against our children. This legislation builds upon the steps my Administration took last year to expand, enhance, and coordinate the successful Amber Alert system across the Nation. The bill also strengthens child pornography laws." He added that "I look forward to signing this important legislation into law as soon as possible."