Provides enhanced penalties for recidivists with respect to child pornography, sexual abuse, and transportation for illegal sexual activity and related crimes.
Amends the Victims of Child Abuse Act of 1990 to authorize a provider of electronic communication or remote computing services to disclose information indicating a State criminal law child pornography violation to State or local law enforcement officials. Authorizes the National Center for Missing and Exploited Children to report facts or circumstances indicating a violation of child pornography prohibitions by such a provider.
Amends provisions regarding transactional information that may be obtained through an administrative subpoena issued with respect to the sexual exploitation or abuse of children.
Authorizes the interception of communications in the investigation of offenses involving obscene visual representations of young children or sexual abuse of minors.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1161 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 1161
To prevent trafficking in child pornography and obscenity, to proscribe
pandering and solicitation relating to visual depictions of minors
engaging in sexually explicit conduct, to prevent the use of child
pornography and obscenity to facilitate crimes against children, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 6, 2003
Mr. Smith of Texas (for himself, Mr. Coble, Mr. Sensenbrenner, Mr.
Pomeroy, Mr. Lampson, Mr. Foley, Mr. Baker, Mr. Bartlett of Maryland,
Mr. Cannon, Mr. Culberson, Mr. DeLay, Mr. Wamp, Mr. Ryun of Kansas, Mr.
Gilchrest, Mr. Wilson of South Carolina, Mr. Green of Wisconsin, Mr.
Hunter, Ms. Jackson-Lee of Texas, Mr. Jenkins, Mrs. Johnson of
Connecticut, Mr. Pickering, Mr. Simmons, Mr. Souder, Mr. Spratt, Mr.
Stenholm, Mr. Weldon of Florida, Mr. Pence, Mr. Oxley, Mr. Matheson,
Mr. LoBiondo, Mr. Kennedy of Minnesota, Mr. Rogers of Michigan, Mr.
Weller, Mr. Bachus, Ms. Hart, Mr. Goodlatte, Mr. Keller, Mrs. Capito,
and Mr. Visclosky) introduced the following bill; which was referred to
the Committee on the Judiciary
_______________________________________________________________________
A BILL
To prevent trafficking in child pornography and obscenity, to proscribe
pandering and solicitation relating to visual depictions of minors
engaging in sexually explicit conduct, to prevent the use of child
pornography and obscenity to facilitate crimes against children, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Obscenity and Pornography
Prevention Act of 2003''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Obscenity and child pornography are not entitled to
protection under the First Amendment under Miller v.
California, 413 U.S. 15 (1973) (obscenity), or New York v.
Ferber, 458 U.S. 747 (1982) (child pornography) and thus may be
prohibited.
(2) The Government has a compelling state interest in
protecting children from those who sexually exploit them,
including both child molesters and child pornographers. ``The
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance,''
New York v. Ferber, 458 U.S. 747, 757 (1982), and this interest
extends to stamping out the vice of child pornography at all
levels in the distribution chain. Osborne v. Ohio, 495 U.S.
103, 110 (1990).
(3) The Government thus has a compelling interest in
ensuring that the criminal prohibitions against child
pornography remain enforceable and effective. ``The most
expeditious if not the only practical method of law enforcement
may be to dry up the market for this material by imposing
severe criminal penalties on persons selling, advertising, or
otherwise promoting the product.'' Ferber, 458 U.S. at 760.
(4) In 1982, when the Supreme Court decided Ferber, the
technology did not exist to:
(A) computer generate depictions of children that
are indistinguishable from depictions of real children;
(B) use parts of images of real children to create
a composite image that is unidentifiable as a
particular child and in a way that prevents even an
expert from concluding that parts of images of real
children were used; or
(C) disguise pictures of real children being abused
by making the image look computer-generated.
(5) Evidence submitted to the Congress, including from the
National Center for Missing and Exploited Children,
demonstrates that technology already exists to disguise
depictions of real children to make them unidentifiable and to
make depictions of real children appear computer-generated. The
technology will soon exist, if it does not already, to computer
generate realistic images of children.
(6) The vast majority of child pornography prosecutions
today involve images contained on computer hard drives,
computer disks, and/or related media.
(7) There is no substantial evidence that any of the child
pornography images being trafficked today were made other than
by the abuse of real children. Nevertheless, technological
advances since Ferber have led many criminal defendants to
suggest that the images of child pornography they possess are
not those of real children, insisting that the government prove
beyond a reasonable doubt that the images are not computer-
generated. Such challenges increased significantly after the
decision in Ashcroft v. Free Speech Coalition 535 U.S. 234
(2002).
(8) Child pornography circulating on the Internet has, by
definition, been digitally uploaded or scanned into computers
and has been transferred over the Internet, often in different
file formats, from trafficker to trafficker. An image seized
from a collector of child pornography is rarely a first-
generation product, and the retransmission of images can alter
the image so as to make it difficult for even an expert
conclusively to opine that a particular image depicts a real
child. If the original image has been scanned from a paper
version into a digital format, this task can be even harder
since proper forensic assessment may depend on the quality of
the image scanned and the tools used to scan it.
(9) The impact of the Free Speech Coalition decision on the
Government's ability to prosecute child pornography offenders
is already evident. The Ninth Circuit has seen a significant
adverse effect on prosecutions since the 1999 Ninth Circuit
Court of Appeals decision in Free Speech Coalition. After that
decision, prosecutions generally have been brought in the Ninth
Circuit only in the most clear-cut cases in which the
government can specifically identify the child in the depiction
or otherwise identify the origin of the image. This is a
fraction of meritorious child pornography cases. The National
Center for Missing and Exploited Children testified that, in
light of the Supreme Court's affirmation of the Ninth Circuit
decision, prosecutors in various parts of the country have
expressed concern about the continued viability of previously
indicted cases as well as declined potentially meritorious
prosecutions.
(10) Since the Supreme Court's decision in Free Speech
Coalition, defendants in child pornography cases have almost
universally raised the contention that the images in question
could be virtual, thereby requiring the government, in nearly
every child pornography prosecution, to find proof that the
child is real. Some of these defense efforts have already been
successful. In addition, the number of prosecutions being
brought has been significantly and adversely affected as the
resources required to be dedicated to each child pornography
case now are significantly higher than ever before.
(11) Leading experts agree that, to the extent that the
technology exists to computer generate realistic images of
child pornography, the cost in terms of time, money, and
expertise is--and for the foreseeable future will remain--
prohibitively expensive. As a result, for the foreseeable
future, it will be more cost-effective to produce child
pornography using real children. It will not, however, be
difficult or expensive to use readily available technology to
disguise those depictions of real children to make them
unidentifiable or to make them appear computer-generated.
(12) Child pornography results from the abuse of real
children by sex offenders; the production of child pornography
is a byproduct of, and not the primary reason for, the sexual
abuse of children. There is no evidence that the future
development of easy and inexpensive means of computer
generating realistic images of children would stop or even
reduce the sexual abuse of real children or the practice of
visually recording that abuse.
(13) In the absence of congressional action, the
difficulties in enforcing the child pornography laws will
continue to grow increasingly worse. The mere prospect that the
technology exists to create composite or computer-generated
depictions that are indistinguishable from depictions of real
children will allow defendants who possess images of real
children to escape prosecution; for it threatens to create a
reasonable doubt in every case of computer images even when a
real child was abused. This threatens to render child
pornography laws that protect real children unenforceable.
Moreover, imposing an additional requirement that the
Government prove beyond a reasonable doubt that the defendant
knew that the image was in fact a real child--as some courts
have done--threatens to result in the de facto legalization of
the possession, receipt, and distribution of child pornography
for all except the original producers of the material.
(14) To avoid this grave threat to the Government's
unquestioned compelling interest in effective enforcement of
the child pornography laws that protect real children, a
statute must be adopted that prohibits a narrowly-defined
subcategory of images.
(15) The Supreme Court's 1982 Ferber v. New York decision
holding that child pornography was not protected drove child
pornography off the shelves of adult bookstores. Congressional
action is necessary now to ensure that open and notorious
trafficking in such materials does not reappear, and even
increase, on the Internet.
SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8)(B) of title 18, United States Code, is amended
to read as follows:
``(B) such visual depiction is a digital image,
computer image, or computer-generated image that is, or
is indistinguishable (as defined in section 1466A)
from, that of a minor engaging in sexually explicit
conduct; or''.
(b) Section 2256(2) of title 18, United States Code, is amended to
read as follows:
``(2)(A) Except as provided in subparagraph (B), `sexually
explicit conduct' means actual or simulated--
``(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
``(ii) bestiality;
``(iii) masturbation;
``(iv) sadistic or masochistic abuse; or
``(v) lascivious exhibition of the genitals or
pubic area of any person;
``(B) For purposes of subsection 8(B) of this section,
`sexually explicit conduct' means--
``(i) graphic sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite
sex, or lascivious simulated sexual intercourse where
the genitals, breast, or pubic area of any person is
exhibited;
``(ii) graphic or lascivious simulated;
``(I) bestiality;
``(II) masturbation; or
``(III) sadistic or masochistic abuse; or
``(iii) graphic or simulated lascivious exhibition
of the genitals or pubic area of any person;''.
(c) Section 2256 is amended--
(1) in paragraph 8(D), by striking ``and'' at the end;
(2) in paragraph (9), by striking the period at the end and
inserting ``; and''; and
(3) by inserting at the end the following new paragraph:
``(10) `graphic', when used with respect to a depiction of
sexually explicit conduct, means that a viewer can observe any
part of the genitals or pubic area of any depicted person or
animal during any part of the time that the sexually explicit
conduct is being depicted.''.
(d) Section 2252A(c) of title 18, United States Code, is amended to
read as follows:
``(c)(1) Except as provided in paragraph (2), it shall be an
affirmative defense to a charge of violating this section that the
production of the alleged child pornography did not involve the use of
a minor or an attempt or conspiracy to commit an offense under this
section involving such use.
``(2) A violation of, or an attempt or conspiracy to violate, this
section which involves child pornography as defined in section
2256(8)(A) or (C) shall be punishable without regard to the affirmative
defense set forth in paragraph (1).''.
SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is amended--
(1) in subparagraph (C), by striking ``or'' at the end and
inserting ``and''; and
(2) by striking subparagraph (D).
(b) Chapter 110 of title 18, United States Code, is amended--
(1) by inserting after section 2252A the following:
``Sec. 2252B. Pandering and solicitation
``(a) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to provide or sell a visual
depiction to another, and who in connection therewith knowingly
advertises, promotes, presents, or describes the visual depiction with
the intent to cause any person to believe that the material is, or
contains, a visual depiction of an actual minor engaging in sexually
explicit conduct shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases involving a
prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
offers, agrees, attempts, or conspires to receive or purchase from
another a visual depiction that he believes to be, or to contain, a
visual depiction of an actual minor engaging in sexually explicit
conduct shall be subject to the penalties set forth in section
2252A(b)(1), including the penalties provided for cases involving a
prior conviction.
``(c) It is not a required element of any offense under this
section that any person actually provide, sell, receive, purchase,
possess, or produce any visual depiction.
``(d) The circumstance referred to in subsection (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person who travels or is transported in
interstate or foreign commerce in the course of the commission
or in furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.''; and
(2) in the table of sections at the beginning of the
chapter, by inserting after the item relating to section 2252A
the following:
``2252B. Pandering and solicitation.''.
SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.
(a) Chapter 71 of title 18, United States Code, is amended--
(1) by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual depictions of young children
``(a) Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses with intent to
distribute a visual depiction that is, or is indistinguishable from,
that of a pre-pubescent child engaging in sexually explicit conduct, or
attempts or conspires to do so, shall be subject to the penalties set
forth in section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually explicit
conduct, or attempts or conspires to do so, shall be subject to the
penalties set forth in section 2252A(b)(2), including the penalties
provided for cases involving a prior conviction.
``(c) For purposes of this section--
``(1) the term `visual depiction' includes undeveloped film
and videotape, and data stored on computer disk or by
electronic means which is capable of conversion into a visual
image, and also includes any photograph, film, video, picture,
or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means;
``(2) the term `pre-pubescent child' means that (A) the
child, as depicted, is one whose physical development indicates
the child is 12 years of age or younger; or (B) the child, as
depicted, does not exhibit significant pubescent physical or
sexual maturation. Factors that may be considered in
determining significant pubescent physical maturation include
body habitus and musculature, height and weight proportion,
degree of hair distribution over the body, extremity proportion
with respect to the torso, and dentition. Factors that may be
considered in determining significant pubescent sexual
maturation include breast development, presence of axillary
hair, pubic hair distribution, and visible growth of the sexual
organs;
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2); and
``(4) the term `indistinguishable' used with respect to a
depiction, means virtually indistinguishable, in that the
depiction is such that an ordinary person viewing the depiction
would conclude that the depiction is of an actual minor engaged
in sexually explicit conduct. This definition does not apply to
depictions that are drawings, cartoons, sculptures, or
paintings depicting minors or adults.
``(d) The circumstance referred to in subsections (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(e) In a case under subsection (b), it is an affirmative defense
that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such
image; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
image.
``Sec. 1466B. Obscene visual representations of sexual abuse of minors
``(a) Whoever, in a circumstance described in subsection (e),
knowingly produces, distributes, receives, or possesses with intent to
distribute a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that--
``(1) depicts a minor engaging in sexually explicit
conduct; and
``(2) is obscene;
or attempts or conspires to do so, shall be subject to the penalties
set forth in section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
``(b) Whoever, in a circumstance described in subsection (e),
knowingly possesses a visual depiction of any kind, including a
drawing, cartoon, sculpture, or painting, that--
``(1) depicts a minor child engaging in sexually explicit
conduct, and
``(2) is obscene,
or attempts or conspires to do so, shall be subject to the penalties
set forth in section 2252A(b)(2), including the penalties provided for
cases involving a prior conviction.
``(c) It is not a required element of any offense under this
section that the minor child depicted actually exist.
``(d) For purposes of this section, the terms `visual depiction'
has the meaning given that term in section 1466A, and the terms
`sexually explicit conduct' and `minor' have the meanings given those
terms in section 2256(2)(B).
``(e) The circumstance referred to in subsection (a) and (b) is
that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or foreign
commerce by any means, including by computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate or
foreign commerce by any means, including by computer, or was
produced using materials that have been mailed, or that have
been shipped or transported in interstate or foreign commerce
by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
``(f) In a case under subsection (b), it is an affirmative defense
that the defendant--
``(1) possessed less than three such images; and
``(2) promptly and in good faith, and without retaining or
allowing any person, other than a law enforcement agency, to
access any image or copy thereof--
``(A) took reasonable steps to destroy each such
image; or
``(B) reported the matter to a law enforcement
agency and afforded that agency access to each such
image.''; and
(2) in table of sections at the beginning of the chapter,
by inserting after the item relating to section 1466 the
following new items:
``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual
abuse.''.
(b)(1) Except as provided in paragraph (2), the applicable category
of offense to be used in determining the sentencing range referred to
in section 3553(a)(4) of title 18, United States Code, with respect to
any person convicted under section 1466A or 1466B of such title, shall
be the category of offenses described in section 2G2.2 of the
Sentencing Guidelines.
(2) The Sentencing Commission may promulgate guidelines
specifically governing offenses under sections 1466A and 1466B of title
18, United States Code, provided that such guidelines shall not result
in sentencing ranges that are lower than those that would have applied
under paragraph (1).
SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST
MINORS.
Chapter 71 of title 18, United States Code, is amended--
(1) by inserting at the end the following:
``Sec. 1471. Use of obscene material or child pornography to facilitate
offenses against minors
``(a) Whoever, in any circumstance described in subsection (c),
knowingly--
``(1) provides or shows to a person below the age of 16
years any visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually
explicit conduct, any obscene matter, or any child pornography;
or
``(2) provides or shows any obscene matter or child
pornography, or any visual depiction that is, or is
indistinguishable from, that of a pre-pubescent child engaging
in sexually explicit conduct, or provides any other material
assistance to any person in connection with any conduct, or any
attempt, incitement, solicitation, or conspiracy to engage in
any conduct, that involves a minor and that violates chapter
109A, 110, or 117, or that would violate chapter 109A if the
conduct occurred in the special maritime and territorial
jurisdiction of the United States,
shall be subject to the penalties set forth in section 2252A(b)(1),
including the penalties provided for cases involving a prior
conviction.
``(b) For purposes of this section--
``(1) the term `child pornography' has the meaning set
forth in section 2256(8);
``(2) the terms `visual depiction', `pre-pubescent child',
and `indistinguishable' have the meanings respectively set
forth for those terms in section 1466A(c); and
``(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2).
``(c) The circumstance referred to in subsection (a) is that--
``(1) any communication involved in or made in furtherance
of the offense is communicated or transported by the mail, or
in interstate or foreign commerce by any means, including by
computer, or any means or instrumentality of interstate or
foreign commerce is otherwise used in committing or in
furtherance of the commission of the offense;
``(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction or obscene matter by the mail, or in
interstate or foreign commerce by any means, including by
computer;
``(3) any person travels or is transported in interstate or
foreign commerce in the course of the commission or in
furtherance of the commission of the offense;
``(4) any visual depiction or obscene matter involved in
the offense has been mailed, or has been shipped or transported
in interstate or foreign commerce by any means, including by
computer, or was produced using materials that have been
mailed, or that have been shipped or transported in interstate
or foreign commerce by any means, including by computer; or
``(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.''; and
(2) in the table of sections at the beginning of the
chapter, by inserting at the end the following:
``1471. Use of obscene material or child pornography to facilitate
offenses against minors.''.
SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 is amended--
(1) by striking ``subsection (d)'' each place it appears in
subsections (a), (b), and (c) and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d), respectively,
as subsections (d) and (e); and
(3) by inserting after subsection (b) a new subsection (c)
as follows:
``(c)(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any minor
to engage in, or who has a minor assist any other person to engage in,
any sexually explicit conduct outside of the United States, its
possessions and Territories, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided under
subsection (e).
``(2) The circumstance referred to in paragraph (1) is that--
``(A) the person intends such visual depiction to be
transported to the United States, its possessions, or
territories, by any means including by computer or mail; or
``(B) the person transports such visual depiction to, or
otherwise makes it available within, the United States, its
possessions, or territories, by any means including by computer
or mail.''.
SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.
Sections 2251(e) (as redesignated by section 7(2)), 2252(b), and
2252A(b) of title 18, United States Code, are each amended by inserting
``chapter 71,'' immediately before each occurrence of ``chapter
109A,''.
SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED
INFORMATION.
(a) Section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032) is amended--
(1) in subsection (b)(1)--
(A) by inserting ``2252B,'' after ``2252A,''; and
(B) by inserting ``or a violation of section 1466A
or 1466B of that title,'' after ``of that title),'';
(2) in subsection (c), by inserting ``or pursuant to''
after ``to comply with'';
(3) by amending subsection (f)(1)(D) to read as follows:
``(D) where the report discloses a violation of
State criminal law, to an appropriate official of a
State or subdivision of a State for the purpose of
enforcing such State law.'';
(4) by redesignating paragraph (3) of subsection (b) as
paragraph (4); and
(5) by inserting after paragraph (2) of subsection (b) the
following new paragraph:
``(3) In addition to forwarding such reports to those
agencies designated in subsection (b)(2), the National Center
for Missing and Exploited Children is authorized to forward any
such report to an appropriate official of a state or
subdivision of a state for the purpose of enforcing state
criminal law.''.
(b) Section 2702 of title 18, United States Code is amended--
(1) in subsection (b)--
(A) in paragraph (6)--
(i) by inserting ``or'' at the end of
subparagraph (A)(ii);
(ii) by striking subparagraph (B); and
(iii) by redesignating subparagraph (C) as
subparagraph (B);
(B) by redesignating paragraph (6) as paragraph
(7);
(C) by striking ``or'' at the end of paragraph (5);
and
(D) by inserting after paragraph (5) the following
new paragraph:
``(6) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''; and
(2) in subsection (c)--
(A) by striking ``or'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph
(6); and
(C) by adding after paragraph (4) the following new
paragraph:
``(5) to the National Center for Missing and Exploited
Children, in connection with a report submitted thereto under
section 227 of the Victims of Child Abuse Act of 1990 (42
U.S.C. 13032); or''.
SEC. 10. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance, is held invalid, the remainder of this
Act, and the application of such provision to other persons not
similarly situated or to other circumstances, shall not be affected by
such invalidation.
SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.
Section 3486(a)(1)(C)(i) of title 18, United States Code, is
amended by striking ``the name, address'' and all that follows through
``subscriber or customer utilized'' and inserting ``the information
specified in section 2703(c)(2)''.
SEC. 12. DE NOVO REVIEW OF DEPARTURES.
(a) In General.--Section 3742 of title 18, United States Code, is
amended--
(1) in subsection (e)(3), by striking ``unreasonable'' and
inserting ``unwarranted'';
(2) at the end of subsection (e), by striking ``clearly
erroneous and shall give due deference to the district court's
application of the guidelines to the facts.'' and inserting
``clearly erroneous. If the sentence is outside the applicable
guideline range, the court of appeals shall review de novo the
district court's determination under section 3553(b) that a
departure is warranted on the ground that there exists an
aggravating or mitigated circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines, that
should result in a sentence outside the applicable guideline
range. In reviewing the district court's determination of the
applicable guideline range referred to in section 3553(a)(4),
the court of appeals shall give due deference to the district
court's application of the guidelines to the facts.''; and
(3) in subsection (f)(2), by striking ``is unreasonable''
and inserting ``is unwarranted''.
(b) Report by the Attorney General.--
(1) Not later than 15 days after a district court's grant
of a downward departure in any case, other than a case
involving a downward departure for substantial assistance to
authorities pursuant to section 5K1.1 of the Sentencing
Guidelines, the Attorney General shall report to the House and
Senate Committees on the Judiciary, setting forth the case, the
facts involved, the identity of the district court judge, the
district court's stated reasons, whether or not the court
provided the United States with advance notice of its intention
to depart, the position of the parties with respect to the
downward departure, whether or not the United States has filed,
or intends to file, a motion for reconsideration; whether or
not the defendant has filed a notice of appeal concerning any
aspect of the case, and whether or not the United States has
filed, or intends to file, a notice of appeal of the departure
pursuant to section 3742 of the title 18, United States Code.
(2) In any such case, the Attorney General shall thereafter
report to the House and Senate Committees on the Judiciary not
later than 5 days after a decision by the Solicitor General
whether or not to authorize an appeal of the departure,
informing the committees of the decision and the basis for it.
SEC. 13. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE
INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.
Section 2516(1)(c) of title 18, United States Code, is amended by
inserting ``1466A, 1466B,'' before ``2251''.
SEC. 14. RECORDKEEPING TO DEMONSTRATE MINORS WERE NOT USED IN
PRODUCTION OF PORNOGRAPHY.
Not later than 1 year after enactment of this Act, the Attorney
General shall submit to Congress a report detailing the number of times
since January 1993 that the Department of Justice has inspected the
records of any producer of materials regulated pursuant to section 2257
of title 18, United States Code, and section 75 of title 28 of the Code
of Federal Regulations. The Attorney General shall indicate the number
of violations prosecuted as a result of those inspections.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
Subcommittee Hearings Held.
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