Section 1. Short title; table of contents.

The short title is the "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003" or "PROTECT Act." This section is similar to the Senate bill.

Section 2. Severability.

Section 2 of the conference report is identical to section 17 of the Senate bill and section 509 of the House amendment. This section states that if any provision of this Act is held to be invalid, the remainder shall not be affected by such invalidation.

Title I - Sanctions and Offenses.

Sec. 101. Supervised release term for sex offenders.

Section 101 of the conference report is substantively identical to section 101 of the House amendment. There is no equivalent provision in the Senate bill. This section amends 18 U.S.C. § 3583 to provide a judge with the discretion to extend the term of post-release supervision of sex offenders up to a maximum of life. The House amendment required the supervised release term to be no less than five years and up to life. Under current law, the maximum period of post-release supervision in Federal cases is generally five years even for the most serious crimes, and the maximum period for most offenses is three years or less.

This section responds to the long-standing concerns of Federal judges and prosecutors regarding the inadequacy of the existing supervision periods for sex offenders, particularly for the perpetrators of child sexual abuse crimes, whose criminal conduct may reflect deep-seated aberrant sexual disorders that are not likely to disappear within a few years of release from prison. The current length of the authorized supervision periods is not consistent with the need presented by many of these offenders for long-term - and in some cases, life-long - monitoring and oversight. This section is similar to H.R. 4679, the "Lifetime Consequences for Sex Offenders Act of 2002," which passed the House 409-3 on June 25, 2002.

Sec. 102. First degree murder for child abuse and child torture murders.

Section 102 of the conference report is substantively identical to section 102 of the House amendment. There is no equivalent provision in the Senate bill. This section amends 18 U.S.C. § 1111, by inserting "child abuse" and "the pattern or practice of assault or torture against a child or children" that results in murder as a predicate for first degree murder. Section 1111 is the Federal murder statute. Under current law, first degree murder includes murder committed in the perpetration of, or attempt to perpetrate, certain crimes including arson, escape, kidnapping, sexual abuse, and several other crimes. "Child abuse" and "torture" would be added to the list for first degree murder. Acts of child abuse with lethal consequences are as deserving of such treatment as killings occurring in the course of such offenses as burglary or robbery. Since first degree murder is punishable by death or life imprisonment, these changes will help to ensure that child abusers who kill their victims will receive penalties that reflect the heinousness of their crimes. However, with regard to the definition of child abuse, it is the intent of the conferees that this section is not intended to impair the free exercise of one's religious beliefs with regard to a parent's decision about the provision of medical care for their children.

Sec. 103. Sexual abuse penalties.

Section 103 of the conference report is substantively identical to section 103 of the House amendment. There is no equivalent provision in the Senate bill. This section increases the maximum and minimum penalties of section 1591 and chapters 110 and 117 of title 18, United States Code, relating to the sexual exploitation of children and the sex trafficking of children. This section increases the mandatory minimum penalties for only the most serious crimes of sexual abuse and sexual exploitation of children at the request of the Senate.

Statutory maximum penalties provide only an upper limit on punishment, and accordingly should be coordinated to the type of penalty which would be appropriate for the most aggravated forms of the offenses in question, as committed by offenders with the most serious criminal histories. Where the statutory maximum penalty is too low, it may be impossible to impose a proportionate penalty in cases involving highly aggravated offense conduct. Likewise, in cases involving incorrigible offenders, low statutory maximum penalties may force the court to impose a sentence that is less than what is warranted in light of the offender's criminal history.

The increased mandatory minimum sentences are responsive to real problems of excessive leniency in sentencing under existing law. For example, the offenses under chapter 117 of title 18, United States Code, apply in sexual abuse cases involving interstate movement of persons or use of interstate instrumentalities, such as luring of child victims through the Internet. Courts all too frequently impose sentences more lenient than those prescribed by the sentencing guidelines in cases under chapter 117, particularly in situations where an undercover agent rather than a child was the object of the enticement. Yet the offender's conduct in such a case reflects a real attempt to engage in sexual abuse of a child, and the fact that the target of the effort turned out to be an undercover officer has no bearing on the culpability of the offender, or on the danger he presents to children if not adequately restrained and deterred by criminal punishment. Likewise, courts have been disposed to grant downward departures from the guidelines for child pornography possession offenses under chapter 110, based on the misconception that these crimes are not serious.

Sec. 104. Stronger penalties against kidnapping.

Section 104 of the conference report is identical to section 104 of the House amendment. There is no equivalent provision in the Senate bill. This section directs the United States Sentencing Commission to increase the base offense level for kidnapping from level 24 (51-63 months) to a base offense level of 32 by amending § 2A4.1(a) of the United States Sentencing Guidelines. It further deletes § 2A4.1(b)(4)(C) of the United States Sentencing Guidelines, which rewards kidnappers for releasing the victim within 24 hours by reducing the base offense level by one point. Under the current Guidelines, if a defendant sexually exploits the kidnapping victim, then the defendant's base offense level is increased by 3 levels. This is amended to a 6 level increase by amending § 2A4.1(b)(5) of the United States Sentencing Guidelines.

This section also amends 18 U.S.C. § 1201 to provide for a mandatory minimum sentence of 20 years if the victim of the non-family kidnapping is under the age of 18.

Sec. 105. Penalties against sex tourism.

Section 105 of the conference report is substantively identical to section 105 of the House amendment. There is no equivalent provision in the Senate bill. This section addresses a number of problems related to persons who travel to foreign countries and engage in illicit sexual relations with minors. Current law requires the government to prove that the defendant traveled with the intent to engage in the illegal activity. Under this section, the government would only have to prove that the defendant engaged in illicit sexual conduct with a minor while in a foreign country. This section also criminalizes the actions of sex tour operators who arrange, induce, procure, or facilitate the travel of a person for commercial advantage or private financial gain, knowing that such a person is traveling in interstate or foreign commerce for the purpose of engaging in illicit sexual conduct. The maximum penalty a defendant could receive is up to thirty years imprisonment. This section is similar to H.R. 4477, the "Sex Tourism Prohibition Improvement Act of 2002," which passed the House by 418 yeas to 8 nays on June 26, 2002.

Sec. 106. Two strikes you're out.

Section 106 of the conference report is similar to section 106 of the House amendment. There is no equivalent provision in the Senate bill. This section would establish a mandatory sentence of life imprisonment for twice-convicted child sex offenders. This section amends 18 U.S.C. § 3559 to provide for a mandatory minimum sentence of life imprisonment for any person convicted of a "Federal sex offense" if they had previously been convicted of a similar offense under either Federal or state law. The legislation defines Federal sex offense to include offenses committed against a person under the age of 17 and involving the crimes of sexual abuse, aggravated sexual abuse, sexual exploitation of children, abusive sexual contact, and the interstate transportation of minors for sexual purposes. This section is similar to H.R. 2146, the "Two Strikes and You're Out Child Protection Act," which passed the House by 382 to 34 on March 14, 2002.

Sec. 107. Attempt liability for international parental kidnapping.

Section 107 of the conference report is identical to section 107 of the House amendment. There is no equivalent provision in the Senate bill. This section amends 18 U.S.C. § 1204, which generally prohibits removing a child from the United States or retaining a child outside the United States with intent to obstruct the lawful exercise of parental rights. As amended, the statute would prohibit attempts to commit this offense, as well as completed offenses.

This change is needed to facilitate effective intervention and prevention of parental kidnappings of children before they are removed from the United States. The current absence of attempt liability has created difficulties in cases in progress where the abducting parent is on the way out of the country, but is still transiting in the United States. In those cases, the FBI now has very limited ability to become involved and prevent the abduction from becoming an international occurrence. Local and state law enforcement must be looked to prevent the removal of the child from the country in such cases, but state and local authorities have been very reluctant to become involved. The addition of attempt liability will resolve these problems by enabling the FBI to deal with these cases directly. In addition, it will make penalties and means of restraint available through criminal prosecution and conviction in cases where persons attempt international child abductions in violation of 18 U.S.C. § 1204, but are apprehended before they succeed in getting the child out of the country.

Sec. 108. Pilot Program for National Criminal History Background Checks and Feasibility Study.

Section 108 of the conference report is similar to section 307 of the House amendment. There is no equivalent provision in the Senate bill. The National Child Protection Act was enacted in 1993 to provide a process for background checks for volunteers, but according to the groups that depend on volunteers to work with children, the disabled, and the elderly, the process was not working as intended. Additional legislation to improve this process was enacted through the Volunteers for Children Act of 1998. Concerns remain about the background check process.

This section responds to those concerns and establishes criminal history records check pilot programs and requires the Attorney General to study the current state of fingerprinting technology and the Federal and state governments capacity to perform these checks. The first pilot program permits certain volunteer organizations designated in three states selected by the Attorney General to request state criminal background checks and Federal 10-fingerprint criminal background checks on their volunteers. The second pilot program authorizes three designated volunteer organizations to receive 100,000 Federal 10-fingerprint criminal background checks, equally allocated, to determine whether potential volunteers are fit to work with children. Each pilot program will last for eighteen months. The Attorney General will report to Congress on the implementation of the pilot programs at their conclusion.

Title II- Investigations and Prosecutions.

Sec. 201. Interceptions of communications in investigations of sex offenses.

Section 201 of the conference report is substantively identical to section 15 of the Senate bill. Current Federal law allows the interception of oral and electronic communications ("wiretapping") if authorized by a court order. A number of requirements must be satisfied to issue such an order, including probable cause to believe that an offense specifically enumerated in 18 U.S.C. § 2516 has been or will be committed and that particular communications concerning the offense will be obtained through the proposed interception.

Current law provides inadequate investigative tools to combat child sexual exploitation, Internet luring of children for purposes of sexual abuse, and sex trafficking. For example, the list of wiretap predicates now includes a variety of offenses such as theft, fraud, and trafficking in stolen property. The current wiretap predicates, however, do not include the crime of buying or selling a child to be used in the production of child pornography, ⁽¹⁾ or the offense of sex trafficking in persons, ⁽²⁾ or the crimes under chapter 117 of title 18 of the United States Code prohibiting interstate transportation or travel or use of interstate instrumentalities to promote prostitution. Section 201 enhances investigative authority for these heinous crimes by adding as wiretap predicates for several offenses under the sex offense chapters of the criminal code which are not currently covered - specifically, 18 U.S.C. §§ 2251A, 2252A, 2260, 2421, 2422, 2423, and 2425, as well as the sex trafficking statute, 18 U.S.C. § 1591. This section is similar to H.R. 1877, the "Child Sex Crimes Wiretapping Act of 2002," which passed the House by 396 yeas - 11 nays on May 21, 2002.

Sec. 202. No statute of limitations for child abduction and sex crimes.

Section 202 of the conference report contains similar language to section 202 of the House amendment. The Senate bill did not have comparable language. The House amendment created a new section in the criminal code that provided that child abductions and felony sex offenses are not subject to a statute of limitations. The conference report amends the current law that covers the statute of limitations for offenses involving the sexual or physical abuse of a child. This section adds crimes of kidnapping and extends the statute of limitations to the life of the child victim. Under current law, the limitation period applicable to most Federal crimes is five years. ⁽³⁾ There are some exceptions to this limitation. ⁽⁴⁾ Under current law, the standard limitation rules do not bar prosecution "for an offense involving the sexual or physical abuse of a child under the age of eighteen years . . . before the child reaches the age of 25 years." ⁽⁵⁾ While this is better than a flat five-year rule, it remains inadequate in many cases. For example, a person who abducted and raped a child could not be prosecuted beyond this extended limit - even if DNA matching conclusively identified him as the perpetrator one day after the victim turned 25.

No pretrial release for those who rape or kidnap children.

Section 203 of the conference report is substantively identical to section 221 of the House amendment. There is no equivalent provision in the Senate bill. This section provides a rebuttable presumption that child rapists and kidnappers should not get pre-trial release. Under current law, a defendant may be detained before trial if the government establishes by clear and convincing evidence that no release conditions will reasonably assure the appearance of the person and the safety of others. Current law also provides rebuttable presumptions that the standard for pretrial detention is satisfied in certain circumstances. For example, such a presumption exists if the court finds probable cause to believe that the defendant committed a drug offense punishable by imprisonment for 10 years or more, or that the person committed a crime of violence or drug trafficking crime while armed with a firearm, in violation of 18 U.S.C. § 924(c). ⁽⁶⁾ Thus, existing law creates a presumption that, for example, an armed robber charged under 18 U.S.C. § 924(c) cannot safely be released before trial. This section will provide the same presumption for crimes such as child abduction and child rape.

Sec. 204. Suzanne's Law.

Section 204 of the conference report is identical to section 241 of the House amendment. There is no equivalent provision in the Senate bill. This section amends section 3701(a) of the Crime Control Act of 1990 (42 U.S.C. 5779(a)) to require law enforcement agencies to report missing persons less than 21 years of age to the National Crime Information Center. Current law only requires reporting for children under the age of 18.

Title III- Public Outreach.

Subtitle A - AMBER Alert.

Sec. 301. National coordination of AMBER Alert communications network.

Section 301 of the conference report is identical to section 301 of the House amendment. There is no equivalent provision in the Senate bill. This section codifies the establishment of an AMBER Alert Coordinator within the Department of Justice to assist states with their AMBER Alert plans. This coordinator will eliminate gaps in the network, including gaps in interstate travel, work with states to encourage development of additional AMBER plans, work with states to ensure regional coordination among plans, and serve as a nationwide point of contact. On October 2, 2002, President Bush directed the Attorney General to designate a Justice Department officer to serve as AMBER Alert Coordinator to help expand the AMBER Alert system nationwide. Assistant Attorney General Deborah J. Daniels was designated as that coordinator and has been working to assist state and local officials with developing and enhancing AMBER plans, and to promote statewide and regional coordination among plans ever since. This section requires that not later than March 1, 2005, the Coordinator submit a report to Congress on the effectiveness and status of the AMBER plans of each state.

The AMBER program is a voluntary partnership between law-enforcement agencies and broadcasters to activate an urgent alert bulletin in serious child-abduction cases. The goal of the AMBER Alert is to instantly galvanize the entire community to assist in the search for and safe return of the child.

Sec. 302. Minimum standards for issuance and dissemination of alerts through AMBER Alert communications network.

Section 302 of the conference report is identical to section 302 of the House amendment. There is no equivalent provision in the Senate bill. Section 302 requires the Department of Justice Coordinator to establish nationwide minimum standards for the issuance of an AMBER alert and the extent of dissemination of the alert. The legislation allows for voluntary adoption of these standards. The Conference Committee intends that the establishment of minimum standards will limit the use of the system to those rare instances of serious child abductions. Limiting the use of AMBER Alerts is critical to the long-term success of the program because overuse or misuse of AMBER Alerts could lead to public fatigue or apathy to the alerts.

Sec. 303. Grant program for notification and communications systems along highways for recovery of abducted children.

Section 303 of the conference report is identical to section 303 of the House amendment. There is no equivalent provision in the Senate bill. This section authorizes $20,000,000 for fiscal year 2004 for the Secretary of Transportation to make grants to states for the development or enhancement of notification or communications systems along highways for alerts and other information for the recovery of abducted children. The guidelines for these grants are intended to mirror what the AMBER Alert grant program that the Department of Transportation has been developing since October, 2002, and currently has in place.

Sec. 304. Grant program for support of AMBER Alert communications plans.

Section 304 of the conference report is identical to section 304 of the House amendment. There is no equivalent provision in the Senate bill. This section authorizes $5,000,000 for fiscal year 2004 for the Attorney General to administer a grant program for the development and enhancement of programs and activities for the support of AMBER Alert communication plans. This section also authorizes an additional $5,000,000 for fiscal year 2004 for grants to develop and implement new technologies to improve AMBER Alert communications.

Sec. 305. Limitation on liability.

Section 305 of the conference report is a new section that is related to the purpose of this title. This section provides the National Center for Missing and Exploited Children (NCMEC) with civil immunity arising out of any action by NCMEC in connection with activity that is undertaken with, or at the direction of, a Federal law enforcement agency.

Subtitle B - National Center for Missing and Exploited Children.

Sec. 321. Increased support.

Section 321 of the conference report is identical to section 305 of the House amendment. There is no equivalent provision in the Senate bill. The National Center for Missing and Exploited Children (NCMEC) is the nation's resource center for child protection. The Center provides assistance to parents, children, law enforcement, schools, and the community in recovering missing children and raising public awareness about ways to help prevent child abduction, molestation and sexual exploitation. To date, NCMEC has worked on more than 73,000 cases of missing and exploited children and helped recover more than 48,000 children. This section amends the Missing, Exploited, and Runaway Children Protection Act by reauthorizing NCMEC, and reauthorizing and doubling the annual grant to NCMEC from $10,000,000 to $20,000,000 through fiscal year 2005.

Sec. 322. Forensic and investigative support of missing and exploited children.

Section 322 of the conference report is substantively identical to section 308 of the House amendment. There is no equivalent provision in the Senate bill. This section amends section 3056 of title 18, United Sates Code, to allow the U.S. Secret Service to provide forensic and investigative support to the National Center for Missing and Exploited Children to assist in efforts to find missing children. Nearly a decade ago, Congress authorized the U.S. Secret Service to participate in a multi-agency task force with the purpose of providing resources, expertise and other assistance to local law enforcement agencies and the National Center for Missing and Exploited Children (NCMEC) in cases involving missing and exploited children. This began a strong partnership between the Secret Service and NCMEC, and resulted in the Secret Service providing critical forensic support -- including polygraph examinations, handwriting examinations, fingerprint research and identification, age progressions/regressions and audio and video enhancements - to NCMEC and local law enforcement in numerous missing children cases. This section will provide explicit statutory authorization permitting the Secret Service to continue this forensic and investigative support upon request from local law enforcement or NCMEC.

Sec. 323. Creation of a cyber tipline.

Section 323 of the conference report is a new section that is related to the purpose of this title. This section amends the Missing Children's Assistance Act to coordinate the operation of a cyber tipline to provide online users an effective means of reporting Internet related child sexual exploitation.

Subtitle C - Sex Offender Apprehension Program.

Sec. 341. Authorization.

Section 341 of the conference report is identical to section 306 of the House amendment. There is no equivalent provision in the Senate bill. This section would authorize Community Oriented Policing Services (COPS) funding for Sex Offender Apprehension Programs in states that have a sex offender registry and have laws that make it a crime for failure to notify authorities of any change in address information, among other things. The money could be used by local law enforcement agencies to fund officers who would check up on sex offenders and arrest them for noncompliance. Keeping up to date records will help law enforcement in future investigations of missing children.

Subtitle D - Missing Children Procedures in Public Buildings.

Sec. 361. Short title.

Section 361 of the conference report is substantively identical to section 401 of the House amendment. There is no equivalent provision in the Senate bill. This section states that this subtitle may be cited as the "Code Adam Act of 2003."

Sec. 362. Definitions.

Section 362 of the conference report is identical to section 402 of the House amendment. There is no equivalent provision in the Senate bill. This section defines the following terms: child, code adam alert, designated authority, executive agency, Federal agency, and public building.

Sec. 363. Procedures in public buildings regarding a missing or lost child.

Section 363 of the conference report is substantively identical to section 403 of the House amendment. There is no equivalent provision in the Senate bill. This section requires that, not later than 180 days after the date of enactment of this Act, the designated authority for a public building shall establish procedures for locating a child that is missing in the building. The procedures shall provide, at a minimum, the notification of security personnel, obtaining a detailed description of the child, monitoring all points of egress from the building, conducting a thorough search of the building, and notifying local law enforcement.

The original Code Adam is one of the country's largest child-safety programs, and it is supported by the National Center for Missing and Exploited Children. The Wal-Mart retail stores created it in 1994, and it is used in more than 36,000 stores across the United States.

Subtitle E - Child Advocacy Center Grants.

Sec. 381. Information and documentation required by the Attorney General under Victims of Child Abuse Act of 1990.

Section 381 of the conference report is substantively identical to section 222 of the House amendment. There is no equivalent provision in the Senate bill. This section reauthorizes grant programs within the Victims of Child Abuse Act of 1990, 42 U.S.C. § 13001 et seq., that provide funding to child advocacy centers and training and technical assistance to programs to improve the prosecution of child abuse cases. This funding trains law enforcement agencies, prosecutors and local jurisdictions to help them establish comprehensive, interdisciplinary approaches to the investigation and prosecution of child abuse. The goal of these programs is to minimize the trauma of the justice system for children who are victims of abuse as well as to ensure that the mental, emotional and physical needs of these children are not forgotten. The authorization for this funding expired in fiscal year 2000, however, the Department of Justice has continued to receive funds for these programs and continues to administer them.

Title IV - Sentencing Reform.

Sec. 401. Sentencing reform.

Section 401 of the conference report is a modification of section 109 of the House amendment. There is no equivalent provision in the Senate bill. This section addresses the longstanding problem of downward departures from the Federal Sentencing Guidelines. According to the Sentencing Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial courts reduced the sentence of those convicted of all non-immigration offenses in 12.2 percent of the cases while those convicted of sexual abuse received a downward departure over 16 percent of the cases, and granted reductions below the guideline range of those convicted of sexual abuse by an astonishing 63 percent from the guideline range. For those convicted of pornography and/or prostitution related offenses, trial courts departed from the recommended guidelines over 18 percent of the time, reducing these defendants' sentences by a staggering 66 percent.

The provisions of this section would restrict departures in cases under section 1201 involving a minor victim, section 1591, or under chapters 109A, 110 or 117 of title 18, United States Code. Specifically, in those cases, a court could only sentence a defendant outside the guideline range upon grounds specifically enumerated in the guidelines as proper for departure. This would eliminate ad hoc departures based on vague grounds, such as "general mitigating circumstances."

In addition, this section would for all cases require courts to give specific written reasons for any departure from the guidelines; change the standard of review for appellate courts to a de novo review to allow appellate courts more effectively to review illegal and inappropriate downward departures; prevent sentencing courts, upon remand, from imposing the same illegal departure on a different theory; and only allow courts to grant an additional third point reduction for "acceptance of responsibility" upon motion of the government.

Also, the definition of "pattern of activity involving prohibited sexual conduct" in the Sentencing Guidelines is broadened. Currently, the guidelines provides that such a pattern exists only where the defendant engaged in prohibited sexual conduct on at least two separate occasions with at least two different minor victims. This definition does not adequately take account of the frequent occurrence of repeated sexual abuse against a single child victim, and the severity of the harm to such victims from the repeated abuse. This section would broaden the definition to include repeated abuse of the same victim on separate occasions.

For cases other than those involving offenses in section 1201 involving a minor victim, section 1591, or chapters 109A, 110 or 117 of title 18 of the United States Code, this section directs the Sentencing Commission to review grounds for downward departures and promulgate amendments to ensure that the incident of downward departure are substantially reduced.

The Sentencing Guidelines are also amended with regard to the penalties for possession of child pornography in two ways. First, penalties are increased if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence and, second, penalties are increased based on the amount of child pornography involved in the offense.

Title V- Obscenity and Pornography,

Subtitle A - Child Obscenity and Pornography Prevention

This subtitle is a compromise that incorporates parts of the House and Senate anti-child pornography bills. Both these bills address the April 16, 2002 Supreme Court decision in Ashcroft v. the Free Speech Coalition. ⁽⁷⁾ That decision struck down parts of a 1996 law written to combat computer-generated pornography as too broad.

Sec. 501. Findings.

Section 501 of the conference report is identical to section 501 of the House amendment and similar to section 2 of the Senate bill. This section provides detailed congressional findings.

Sec. 502. Improvements to prohibition on virtual child pornography.

Section 502 addresses the Supreme Court's holding that the definition of child pornography under 18 U.S.C. § 2256(8)(B), relating to virtual child pornography, was over broad and unconstitutional. Section 502 incorporates the House definition for computer-generated child pornography and the Senate affirmative defense language, with a technical amendment.

Section 502(a) of the conference report is substantively identical to section 502(a) of the House amendment and similar to section 5 of the Senate bill. This section narrows the definition of child pornography under 18 U.S.C. § 2256(8)(B) to depictions that are "digital images" (e.g., picture or video taken with a digital camera), "computer images" (e.g., pictures scanned into a computer), or "computer-generated images" (e.g., images created or altered with the use of a computer). The Supreme Court was concerned in Free Speech Coalition that the breadth of the language would prohibit legitimate movies like "Traffic" or plays like "Romeo and Juliet." Limiting the definition to digital, computer, or computer-generated images will help to exclude ordinary motion pictures from the coverage of "virtual child pornography." Section 502(a) further narrows the definition by replacing the phrase "appears to be" with the phrase "is indistinguishable from." That new phrase addresses the Court's concern that cartoon-sketches would be banned under the statute. "The substitution of 'is indistinguishable from' in lieu of 'appears to be' more precisely reflects what Congress intended to cover in the first instance, and eliminates an ambiguity that infected the current version of the definition and that enabled those challenging the statute to argue that it 'capture[d] even cartoon-sketches and statues of children that were sexually suggestive.'" ⁽⁸⁾

Section 502(b) also narrows the definition of child pornography by amending 18 U.S.C. § 2256(2) to require a simulated image to be lascivious to constitute child pornography under the new definition in 18 U.S.C. § 2256(8)(B). Thus, child pornography that simulates sexually explicit conduct must be lascivious as well as meet the other requirement of the definition. This language is identical to the House Amendment.

Section 502(c) of the conference report is similar to section 502(c) of the House amendment and defines the terms "graphic" and "indistinguishable."

Section 502(d) of the conference report amends the existing statutory provision in the Federal criminal code to conform with the Supreme Court's holding by replacing 18 U.S.C. § 2252A(c), the affirmative defense for violations of 18 U.S.C. § 2252A. The section contains a modified affirmative defense provided in section 3(c) of the Senate bill.

The current affirmative defense in 18 U.S.C. § 2252A(c) provides a defense for violations of subsections 2252A(a)(1)-(4) of title 18, United States Code, where the person producing the material used adults and did not distribute the material so as to convey the impression that the material was child pornography. The Supreme Court in Free Speech Coalition did not rule on the existing affirmative defense in 18 U.S.C. § 2252A(c). The Court left open the possibility that the 1996 statute might have survived the constitutional challenge as overbroad if the affirmative defense had been more complete. Specifically, the Court stated, "We need not decide, however, whether the Government could impose this burden [of an affirmative defense] on a speaker. Even if an affirmative defense can save a statute from First Amendment challenge, here the defense is incomplete and insufficient, even on its own terms." ⁽⁹⁾ Justice Thomas, in his concurring opinion, stated that the "Court does leave open the possibility that a more complete affirmative defense could save a statute's constitutionality." ⁽¹⁰⁾ Thus, the Court appears to have implicitly accepted that some regulation of virtual child pornography might be constitutional and this provision strengthens the affirmative defense as suggested by the Court.

Like the House Amendment, the Senate language creates a new and comprehensive affirmative defense for anyone charged with distributing or possessing child pornography. With this new affirmative defense an accused can completely escape liability by showing that the sexually explicit depictions in question were produced without using any actual minors. The provision also makes clear that the defendant must provide timely and specific notice of his intent to raise either the youthful-looking adult or virtual porn defense. The Senate language was modified to ensure the defense does not apply to the pandering provisions or the morphing provisions. This defense does not apply to any old or new obscenity provisions.

Sec. 503. Certain activities relating to material constituting or containing child pornography.

Section 503 of the conference report is identical to section 3(a) and (b) of the Senate bill and substantively identical to sections 503 and 505 of the House Amendment. Section 503 includes a new pandering provision (to be codified at 18 U.S.C. § 2252A(a)(3)(B)) that prohibits "advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing]" real or purported materials that the actor believes, or intends to cause another to believe, contain depictions of actual or obscene child pornography. This provision bans the offer to transact in unprotected material, coupled with proof of the offender's specific intent. Thus, for example, this provision prohibits an individual from offering to distribute anything that he specifically intends to cause a recipient to believe would be actual or obscene child pornography. It likewise prohibits an individual from soliciting what he believes to be actual or obscene child pornography. The provision makes clear that no actual materials need exist; the government establishes a violation with proof of the communication and requisite specific intent. Indeed, even fraudulent offers to buy or sell unprotected child pornography help to sustain the illegal market for this material.

Section 503 (to be codified at 18 U.S.C. § 2252A(a)(6)) creates a new offense that criminalizes the act of using any type of real or apparent child pornography to induce a child to commit a crime.

Sec. 504. Obscene child pornography.

Section 504 of the conference report is substantively identical to section 6 of the Senate bill and similar to section 504 of the House amendment. Section 504 of the conference report creates new obscenity offenses under Chapter 71 of title 18, United States Code, (to be codified at 18 U.S.C. § 1466A) that criminalizes obscene sexually explicit depictions of minors. This section prohibits any obscene depictions of minors engaged in any form of sexually explicit conduct and prohibits a narrow category of "hardcore" pornography involving real or apparent minors, where such depictions lack literary, artistic, political, or scientific value. These new offenses are subject to the penalties applicable to child pornography, not the lower penalties that apply to obscenity, and it also contains a directive to the U.S. Sentencing Commission requiring the Commission to ensure that the U.S. Sentencing Guidelines are consistent with this fact.

Sec. 505. Admissibility of evidence.

Section 505 of the conference report is identical to section 4 of the Senate bill. There is no comparable provision in the House amendment. This section (to be codified at 18 U.S.C. § 2252A(e)) protects the privacy of minors depicted in obscenity and child pornography by permitting the government to seek an order that shields non-physical identifying information from public scrutiny. Of course, such information may be a critical component of the government's proof at trial. There may be evidence, for example, that the defendant stored the sexually explicit depiction in a folder labeled "Jennifer - Age 12." For this reason, this provision does not require the government to seek the exclusion of such information in every instance. When the government moves to do so, however, this provision creates a strong presumption that the privacy of the minor shall be protected. In that event, the government also is entitled to obtain a jury instruction that the absence of this information shall not be used to infer that the depictions are not, in fact, actual minors.

Sec. 506. Extraterritorial production of child pornography for distribution in the United States.

Section 506 of the conference report is identical to section 10 of the Senate bill and substantively identical to section 506 of the House amendment. This section amends current law by providing the Government with the authority to prosecute foreign producers of child pornography if that material is transported, or intended to be transported, to the United States. Persons and entities who target, exploit, profit from, or help to perpetuate the market for child pornography in the United States are fairly subject to our system of laws and penalties. The purpose of this section is to stop efforts by producers of child pornography to avoid criminal liability based on the fact that the child pornography was produced outside of the United States, but intended for use inside the United States. ⁽¹¹⁾

Sec. 507. Strengthening enhanced penalties for repeat offenders.

Section 507 of the conference report is identical to section 507 of the House amendment and similar to section 12 of the Senate bill. This section amends chapter 110, the child pornography chapter of title 18, United States Code, which provides enhanced penalties for recidivists in that chapter, chapter 109A (relating to sexual abuse), and chapter 117 (relating transportation for illegal sexual activity and related crimes). The new language includes the offenses under the obscenity chapter, chapter 71 and the sexual assault crimes under military law in article 120 of the Uniform Code of Military Justice. Recidivism is a huge problem in sexual exploitation cases. This section addresses the problem by enhancing the penalties for repeat offenders.

Sec. 508. Service provider reporting of child pornography and related information.

Section 508 of the conference report is substantively identical to section 508 of the House Amendment and substantively identical to sections 8 and 9 of the Senate bill. The conference report amends section 227 of the Victims of Child Abuse Act of 1990, which requires providers of electronic communications and remote computing services to report apparent offenses that involve child pornography. ⁽¹²⁾ Section 508 of the conference report strengthens this reporting system by adding the new offenses under §§ 2252B and 1466A.

Section 508(b) amends 18 U.S.C. § 2702 to be consistent with section 227 of the Victims of Child Abuse Act, which provides that, in addition to the required information that is reported to NCMEC, the reports may include "additional information." This should make it clear, for example, that an Internet service provider can disclose the identity of a subscriber who sent a message containing child pornography, in addition to the contents of such a communication already required to be reported under current law. Section 2702(b)(6)(B) of title 18,United States Code, only authorizes disclosure of content information required by the Victims of Child Abuse Act, and contains no language that appears to cover relevant non-content information, such as the identity of the sender of the child pornography in the example described above. This section corrects that inconsistency.

This section also includes a provision to change the current law that prevents the Federally funded Internet Crimes Against Children Task Forces to receive reports from the Cyber Tipline. These Task Forces are state and local police agencies that have been identified by the NCMEC as competent to investigate and prosecute computer facilitated crimes against children. The new language authorizes Internet Crimes Against Children Task Forces access to the Cyber Tipline Reports as the vast majority of cases in this area are investigated and prosecuted by state and local law enforcement.

Sec. 509. Investigative authority relating to child pornography.

Section 509 of the conference report is identical to section 510 of the House amendment and section 16 of the Senate bill. This section is technical in nature. This section updates the current law regarding the use of administrative subpoenas. Section 3486 of title 18, United States Code, covers administrative subpoenas. Recent changes to the law updated the transactional information that may be obtained under 18 U.S.C. § 2703(c)(2) through an administrative subpoena. To update 18 U.S.C. § 3486, which covers subpoenas issued involving the sexual exploitation or abuse of children, this provision inserts the information specified in 18 U.S.C. § 2703(c)(2) for the list of transactional information in 18 U.S.C. § 3486. Transactional information includes billing records and other similar records.

Sec. 510. Civil remedies.

Section 510 of the conference report is identical to section 11 of the Senate bill. There is no equivalent provision in the House amendment. This section creates a new civil cause of action against producers, distributors, and possessors of obscenity relating to children and child pornography. Persons aggrieved by such conduct may bring suit seeking appropriate relief, including punitive damages and reasonable attorneys' fees.

Sec. 511. Recordkeeping requirements.

Section 511 of the conference report reflects a merger of two related, but not identical, reporting requirements. The conference report merges section 7 of the Senate bill and section 512 of the House amendment. Section 7 of the Senate bill expands the scope of materials subject to the record keeping requirements of 18 U.S.C. § 2257. Specifically, "computer generated image[s], digital image[s], or picture[s]" are added to the existing categories of sexually explicit materials for which records must be created and maintained. In making these changes, 18 U.S.C. § 2257 is designed to include the most common medium for distributing, exchanging or obtaining child pornography over the internet. This section further increases the existing penalties for violations of 18 U.S.C. § 2257, and incorporates the requirement in section 512 of the House amendment that the Department of Justice detail its record of enforcing such violations.

Sec. 512. Sentencing enhancements for interstate travel to engage in sexual act with a juvenile.

Section 512 of the conference report is identical to section 12 of the Senate bill. There is no equivalent House provision. This section directs the United States Sentencing Commission to review the existing penalties for persons who travel across state lines to engage in sexual activity with a minor in violation of 18 U.S.C. § 2423. The current penalty structure for this offense in the United States Sentencing Guidelines appears too lenient, as such offenders are punished less harshly than offenders who simply possess child pornography.

Section 513: Miscellaneous provisions.

Section 513 of the conference report is identical to section 14 of the Senate bill. The House amendment has no equivalent provision. This section directs the Department of Justice to appoint twenty-five more attorneys who are dedicated to the enforcement of child pornography laws, and authorizes the appropriations of funds necessary to fulfill this mission. It also directs the Department of Justice to prepare periodic reports to Congress on the enforcement of the Federal child pornography laws and obscenity laws related to children, as well as the technology being employed by the producers and distributors of child pornography. Finally, the section requires the United States Sentencing Commission to carefully review and consider the penalties needed to deter and punish the new offenses created in 18 U.S.C. § 2252A.

Subtitle B - Truth in Domain Names

Sec. 521. Misleading domain names on the internet.

Section 521 of the conference report is similar to section 108 of the House amendment. The Senate bill has no equivalent provision. Section 521 makes it a crime to knowingly use a misleading domain name with the intent to deceive a person into viewing obscenity on the Internet and a crime to knowingly use a misleading domain name with the intent to deceive a minor into viewing "material that is harmful to minors" on the Internet.

The term 'material that is harmful to minors' means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context--(1) predominantly appeals to the prurient interest of minors; (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (3) lacks serious literary, artistic, political, or scientific value for minors. Section 2252B(e) defines "sex."

A domain name that includes a word or words to indicate the sexual content of the site, such as "sex" or "porn", is not misleading.

Neither obscenity ⁽¹³⁾ nor material deemed "harmful to minors" is protected by the First Amendment as to minors. ⁽¹⁴⁾ Congress, therefore, may ban such material outright. While Congress, may not ban material harmful to minors on the Internet in a manner that results in "an unnecessarily broad suppression of speech addressed to adults," ⁽¹⁵⁾ prohibiting misleading domain names on Web sites containing material "harmful to minors" would only limit unintentional access by adults to such Web sites, and is not an unnecessarily broad restriction on adults.

Furthermore, under the Central Hudson ⁽¹⁶⁾ test, speech that concerns an unlawful activity or misleading is not protected by the First Amendment. The domain names that the amendment would prohibit would be misleading, and therefore would not be protected by the First Amendment if the Web sites that they name propose a commercial transaction.

This provision is constitutional and necessary. There is a growing trend for those attempting to sell pornography to use aggressive and misleading tactics to deceive unsuspecting and unwilling individuals, both adults and minors, into viewing the pornography - often obscene or harmful to minors.

Title VI. Miscellaneous Provisions

Sec. 601. Penalties For Use Of Minors in Crimes of Violence.

Section 601 of the conference report is a new section that is related to the purpose of this Act. Section 601 adds a new section 25 of title 18 to the United States Code to provide that any person who is 18 years of age or older who intentionally uses a minor to commit a crime of violence shall be imprisoned up to twice the maximum term of imprisonment and twice the maximum fine authorized for the offense for a first offense. New section 25 provides that for each subsequent conviction, a defendant shall be subject to imprisonment to three times the maximum term of imprisonment and three times the maximum fine authorized for the offense.

Sec. 602. Sense of Congress.

Section 602 of the conference report is a new section that is related to the purpose of this Act. Section 602(a) states that it is the sense of the Congress that the Department of Justice should focus its investigative and prosecutorial efforts on major producers, distributors, and sellers of obscene material and child pornography that use misleading methods to market their material to children. Section 602(b) states that it is the sense of the Congress that the online commercial adult entertainment industry should voluntarily refrain from placing obscenity, child pornography, or material that is harmful to minors on the front pages of their websites to protect juveniles from material that may negatively impact their social, moral, and psychological development.

Sec. 603. Communications Decency Act of 1996.

Sec. 604. Internet Availability of Information Concerning Registered Sex Offenders.

Section 604 of the conference report is a new section that is related to the purpose of this Act. To protect children, current law requires a state, or any agency authorized by the state, to release information to the public regarding persons required to register as sex offenders. Section 604 amends the Violent Crime Control and Law Enforcement Act of 1994 to authorize states to create an Internet site containing the names of sex offenders within three years.

Sec. 605. Registration of Child Pornographers in the National Sex Offender Registry.

Section 605 of the conference report is a new section that is related to the purpose of this Act. Current law requires a person convicted of certain criminal offenses against a minor or certain sexually violent offenses to register with the sex offender registry. Section 605 amends Violent Crime Control and Law Enforcement Act of 1994 by including in the crimes against children and sexually violent offender registration program persons convicted of crimes relating to the production and distribution of child pornography and appropriates sufficient funds to make such change to the Department of Justice.

Sec. 606. Grants to States For Costs of Compliance With New Sex Offender Registry Requirements.

Section 606 of the conference report is a new section that is related to the purpose of this Act. The Violent Crime Control and Law Enforcement Act of 1994 authorized $25 million for fiscal years 1999 and 2000 to establish a grant program, the Sex Offender Management Assistance program, to the states to offset the costs associated with establishing and maintaining a sex offender registry. Section 606 amends the Violent Crime Control and Law Enforcement Act of 1994 by authorizing sufficient funds to the states for fiscal years 2004 through 2007 to continue to carry out Sex Offender Management Assistance Programs.

Sec. 607. SAFE ID Act

Section 607 of the conference report is a new section that is related to the purpose of this Act. Under current law, it is not illegal to possess, traffic in, or use false or misleading authentication features whose purpose is to create fraudulent IDs. Section 607 would correct this oversight by making it a crime to counterfeit or alter "authentication features," as well as to traffic such features in false identification documents or without the authorization of the appropriate authority. Authentication features are the holograms, symbols, codes, etc., used by the issuing authority to verify that an ID is authentic. In addition, this section requires forfeiture of equipment used in creating or trafficking in illicit authentication features. This section will help the fight against child abduction, terrorism, identity theft, and underage drinking, among other things, by addressing the growing trade in illicit authentication feature for IDs.

Sec. 608. Illicit Drug Anti-Proliferation Act

Section 608 of the conference report is a new section that is related to the purpose of this Act. This section, known as the Illicit Drug Anti-Proliferation Act, helps to protect children by amending the Controlled Substances Act to expand the "crack house" statute. ⁽¹⁷⁾ This expansion makes it clear that anyone who knowingly and intentionally uses their property, or allows another person to use their property, for the purpose of distributing or manufacturing or using illegal drugs will be held accountable. This section raise the penalties for people who traffic in a substance often marketed to children at clubs; and authorizing funds for drug prevention activities. It also creates a civil penalty for violating 21 U.S.C. § 856.

In addition, the language directs the Sentencing Commission to consider increasing the sentencing guidelines for offenses involving gamma hydroxybutyric acid (GHB), a Schedule I substance often used to facilitate sexual assault. Under current law, an offender would have to have 13 gallons (equivalent to 100,000 doses) of GHB to qualify for a five year penalty. Because large-scale GHB dealers generally distribute gallon quantities of the drug, they generally are not prosecuted at the federal level because the penalties are too low. In order to prevent the abuse of club drugs and other illicit substances, the bill also authorizes $5.9 million for the Drug Enforcement Administration to hire a Demand Reduction Coordinator in each state and authorizes such sums as may be necessary for the Drug Enforcement Administration to educate youth, parents and other interested adults about the dangers associated with club drugs.

Sec. 609. Definition of Vehicle.

Section 609 of the conference report is a new section that is related to the purpose of this Act. This section amends 18 U.S.C. § 1993(c) prohibiting terrorist attacks and other acts of violence against mass transportation systems to add a new section (a)(9) to define "vehicle" as "any carriage or other contrivance used, or capable of being used, as a means of transportation on land, water, or through the air."

Sec. 610. John Doe/DNA Indictments

Section 610 of the conference report is a new section that is related to the purpose of this Act. Section 610 would change current law to encourage Federal prosecutors to bring "John Doe/DNA indictments" in Federal sex crimes. Specifically, the provision amends 18 U.S.C. § 3282 to authorize Federal prosecutors to issue an indictment identifying an unknown defendant by a DNA profile within the five-year statute of limitations. If the indictment is issued within the five-year statute of limitations, the statute is then tolled until the perpetrator is identified through the DNA profile at a later date. The John Doe/DNA indictment would permit prosecution at anytime once there was a DNA "cold hit" through the national DNA database system. John Doe/DNA indictments strike the right balance between encouraging swift and efficient investigations, recognizing the durability and credibility of DNA evidence, and preventing an injustice if a "cold hit" occurs years after the crime and law enforcement did not promptly process forensic evidence. Providing incentives for law enforcement to test crime scene DNA from sexual assaults will also help identify sex offenders (who are often recidivists) to permit their speedy apprehension and prosecution.

Sec. 611. Transitional housing assistance grants for child victims of domestic violence, stalking, or sexual assault.

Section 611 of the conference report is a new section that is related to the purpose of this Act. This section amends Subtitle B of the Violence Against Women Act of 1994 (42 U.S.C. 13701 note; 108 Stat. 1925) to authorize $30 million for the Attorney General to award grants to organizations, States, units of local government, and Indian tribes to carry out programs to provide assistance to individuals who are in need of transitional housing or related assistance as a result of fleeing a situation of domestic violence, and for whom emergency shelter services or other crisis intervention services are unavailable or insufficient.

The grants may be used for programs that provide short-term housing assistance, including rental or utilities payments assistance and assistance with related expenses. Grants will also be available for support services designed to help individuals locate and secure permanent housing, as well as integrate into a community by providing with services, such as transportation, counseling, child care services, case management, employment counseling, and other assistance. Any recipient of a grant must annually prepare and submit a report to the Attorney General describing the number of minors, adults, and dependents assisted, and the types of housing assistance and support services provided.

Under the program, victims would be eligible for assistance for a period of 18 months and would be entitled to seek a waiver for an additional six months of assistance based on an inability to obtain adequate housing.

1. 18 U.S.C. § 2251A

2. 18 U.S.C. § 1591.

3. See 18 U.S.C. § 3282.

4. see, e.g., 18 U.S.C. § 3281 (no limitation period for capital crimes); 18 U.S.C. § 3293 (ten-year limitation period for certain financial institution offenses); 18 U.S.C. § 3294 (twenty-year limitation period for certain thefts of artwork).

5. 18 U.S.C. § 3283.

6. See 18 U.S.C. § 3142(e).

7. 535 U.S. 234 (2002)

8. Department of Justice Transmittal Letter with draft legislation to the Speaker of the House, at 3 (May 2002) (citing Free Speech Coalition, 535 U.S. at 264 (O'Connor, J., concurring in part and dissenting in part)).

9. Free Speech Coalition, 535 U.S. at 256.

10. Free Speech Coalition, 535 U.S. at 259 (Thomas, J., concurring).

11. See, e.g., United States v. Thomas, 893 F. 2d 1066 (9th Cir. 1990).

12. Under the current law, communications providers must report to the National Center for Missing and Exploited Children (NCMEC) when the provider obtains knowledge of facts or circumstances from which a violation of sexual exploitation crimes against children occurs. 42 U.S.C. § 13032(b)(1). A provider of electronic communication services may be fined for knowingly and willfully failing to make a report. 42 U.S.C. § 13032(b)(3). Federal criminal law provides that "[n]o provider or user of an electronic communication service or a remote computing service to the public shall be held liable on account of any action taken in good faith to comply with this section." 42 U.S.C. § 13032(c).

13. Miller v. California, 413 U.S. 15 (1973).

14. Ginsberg v. New York, 390 U.S. 629, 631 (1968).

15. Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997).

16. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).

17. 21 U.S.C. § 856