[House Report 108-66]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-66
======================================================================
PROTECT ACT
_______
April 9, 2003.--Ordered to be printed
_______
Mr. Sensenbrenner, from the committee of conference, submitted the
following
CONFERENCE REPORT
[To accompany S. 151]
The committee of conference on the disagreeing votes of
the two Houses on the amendments of the House to the bill (S.
151), to amend title 18, United States Code, with respect to
the sexual exploitation of children, having met, after full and
free conference, have agreed to recommend and do recommend to
their respective Houses as follows:
That the Senate recede from its disagreement to the
amendment of the House to the text of the bill and agree to the
same with an amendment as follows:
In lieu of the matter proposed to be inserted by the
House amendment, insert the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003'' or ``PROTECT
Act''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Severability.
TITLE I--SANCTIONS AND OFFENSES
Sec. 101. Supervised release term for sex offenders.
Sec. 102. First degree murder for child abuse and child torture murders.
Sec. 103. Sexual abuse penalties.
Sec. 104. Stronger penalties against kidnapping.
Sec. 105. Penalties against sex tourism.
Sec. 106. Two strikes you're out.
Sec. 107. Attempt liability for international parental kidnapping.
Sec. 108. Pilot program for national criminal history background checks
and feasibility study.
TITLE II--INVESTIGATIONS AND PROSECUTIONS
Sec. 201. Interceptions of communications in investigations of sex
offenses.
Sec. 202. No statute of limitations for child abduction and sex crimes.
Sec. 203. No pretrial release for those who rape or kidnap children.
Sec. 204. Suzanne's law.
TITLE III--PUBLIC OUTREACH
Subtitle A--AMBER Alert
Sec. 301. National coordination of AMBER alert communications network.
Sec. 302. Minimum standards for issuance and dissemination of alerts
through AMBER alert communications network.
Sec. 303. Grant program for notification and communications systems
along highways for recovery of abducted children.
Sec. 304. Grant program for support of AMBER alert communications plans.
Sec. 305. Limitation on liability.
Subtitle B--National Center for Missing and Exploited Children
Sec. 321. Increased support.
Sec. 322. Forensic and investigative support of missing and exploited
children.
Sec. 323. Creation of cyber tipline.
Subtitle C--Sex Offender Apprehension Program
Sec. 341. Authorization.
Subtitle D--Missing Children Procedures in Public Buildings
Sec. 361. Short title.
Sec. 362. Definitions.
Sec. 363. Procedures in public buildings regarding a missing or lost
child.
Subtitle E--Child Advocacy Center Grants
Sec. 381. Information and documentation required by Attorney General
under Victims of Child Abuse Act of 1990.
TITLE IV--SENTENCING REFORM
Sec. 401. Sentencing reform.
TITLE V--OBSCENITY AND PORNOGRAPHY
Subtitle A--Child Obscenity and Pornography Prevention
Sec. 501. Findings.
Sec. 502. Improvements to prohibition on virtual child pornography.
Sec. 503. Certain activities relating to material constituting or
containing child pornography.
Sec. 504. Obscene child pornography.
Sec. 505. Admissibility of evidence.
Sec. 506. Extraterritorial production of child pornography for
distribution in the United States.
Sec. 507. Strengthening enhanced penalties for repeat offenders.
Sec. 508. Service provider reporting of child pornography and related
information.
Sec. 509. Investigative authority relating to child pornography.
Sec. 510. Civil remedies.
Sec. 511. Recordkeeping requirements.
Sec. 512. Sentencing enhancements for interstate travel to engage in
sexual act with a juvenile.
Sec. 513. Miscellaneous provisions.
Subtitle B--Truth in Domain Names
Sec. 521. Misleading domain names on the Internet.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 601. Penalties for use of minors in crimes of violence.
Sec. 602. Sense of Congress.
Sec. 603. Communications Decency Act of 1996.
Sec. 604. Internet availability of information concerning registered sex
offenders.
Sec. 605. Registration of child pornographers in the national sex
offender registry.
Sec. 606. Grants to States for costs of compliance with new sex offender
registry requirements.
Sec. 607. Safe ID Act.
Sec. 608. Illicit Drug Anti-Proliferation Act.
Sec. 609. Definition of vehicle.
Sec. 610. Authorization of John Doe DNA indictments.
Sec. 611. Transitional housing assistance grants for child victims of
domestic violence, stalking, or sexual assault.
SEC. 2. 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.
TITLE I--SANCTIONS AND OFFENSES
SEC. 101. SUPERVISED RELEASE TERM FOR SEX OFFENDERS.
Section 3583 of title 18, United States Code, is amended--
(1) in subsection (e)(3), by inserting ``on any
such revocation'' after ``required to serve'';
(2) in subsection (h), by striking ``that is less
than the maximum term of imprisonment authorized under
subsection (e)(3)''; and
(3) by adding at the end the following:
``(k) Notwithstanding subsection (b), the authorized term
of supervised release for any offense under section 1201
involving a minor victim, and for any offense under section
1591, 2241, 2242, 2244(a)(1), 2244(a)(2), 2251, 2251A, 2252,
2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years or
life.''.
SEC. 102. FIRST DEGREE MURDER FOR CHILD ABUSE AND CHILD TORTURE
MURDERS.
Section 1111 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``child abuse,'' after
``sexual abuse,''; and
(B) by inserting ``or perpetrated as part
of a pattern or practice of assault or torture
against a child or children;'' after
``robbery;''; and
(2) by inserting at the end the following:
``(c) For purposes of this section--
``(1) the term `assault' has the same meaning as
given that term in section 113;
``(2) the term `child' means a person who has not
attained the age of 18 years and is--
``(A) under the perpetrator's care or
control; or
``(B) at least six years younger than the
perpetrator;
``(3) the term `child abuse' means intentionally or
knowingly causing death or serious bodily injury to a
child;
``(4) the term `pattern or practice of assault or
torture' means assault or torture engaged in on at
least two occasions;
``(5) the term `serious bodily injury' has the
meaning set forth in section 1365; and
``(6) the term `torture' means conduct, whether or
not committed under the color of law, that otherwise
satisfies the definition set forth in section
2340(1).''.
SEC. 103. SEXUAL ABUSE PENALTIES.
(a) Maximum Penalty Increases.--(1) Chapter 110 of title
18, United States Code, is amended--
(A) in section 2251(d)--
(i) by striking ``20'' and inserting
``30''; and
(ii) by striking ``30'' the first place it
appears and inserting ``50'';
(B) in section 2252(b)(1)--
(i) by striking ``15'' and inserting
``20''; and
(ii) by striking ``30'' and inserting
``40'';
(C) in section 2252(b)(2)--
(i) by striking ``5'' and inserting ``10'';
and
(ii) by striking ``10'' and inserting
``20'';
(D) in section 2252A(b)(1)--
(i) by striking ``15'' and inserting
``20''; and
(ii) by striking ``30'' and inserting
``40''; and
(E) in section 2252A(b)(2)--
(i) by striking ``5'' and inserting ``10'';
and
(ii) by striking ``10'' and inserting
``20''.
(2) Chapter 117 of title 18, United States Code, is
amended--
(A) in section 2422(a), by striking ``10'' and
inserting ``20'';
(B) in section 2422(b), by striking ``15'' and
inserting ``30''; and
(C) in section 2423(a), by striking ``15'' and
inserting ``30''.
(3) Section 1591(b)(2) of title 18, United States Code, is
amended by striking ``20'' and inserting ``40''.
(b) Minimum Penalty Increases.--(1) Chapter 110 of title
18, United States Code, is amended--
(A) in section 2251(d)--
(i) by striking ``or imprisoned not less
than 10'' and inserting ``and imprisoned not
less than 15'';
(ii) by striking ``and both,'';
(iii) by striking ``15'' and inserting
``25''; and
(iv) by striking ``30'' the second place it
appears and inserting ``35'';
(B) in section 2251A(a) and (b), by striking ``20''
and inserting ``30'';
(C) in section 2252(b)(1)--
(i) by striking ``or imprisoned'' and
inserting ``and imprisoned not less than 5
years and'';
(ii) by striking ``or both,''; and
(iii) by striking ``5'' and inserting
``15'';
(D) in section 2252(b)(2), by striking ``2'' and
inserting ``10'';
(E) in section 2252A(b)(1)--
(i) by striking ``or imprisoned'' and
inserting ``and imprisoned not less than 5
years and'';
(ii) by striking ``or both,''; and
(iii) by striking ``5'' and inserting
``15''; and
(F) in section 2252A(b)(2), by striking ``2'' and
inserting ``10''.
(2) Chapter 117 of title 18, United States Code, is
amended--
(A) in section 2422(b)--
(i) by striking ``, imprisoned'' and
inserting ``and imprisoned not less than 5
years and''; and
(ii) by striking ``, or both''; and
(B) in section 2423(a)--
(i) by striking ``, imprisoned'' and
inserting ``and imprisoned not less than 5
years and''; and
(ii) by striking ``, or both''.
SEC. 104. STRONGER PENALTIES AGAINST KIDNAPPING.
(a) Sentencing Guidelines.--Notwithstanding any other
provision of law regarding the amendment of Sentencing
Guidelines, the United States Sentencing Commission is directed
to amend the Sentencing Guidelines, to take effect on the date
that is 30 days after the date of the enactment of this Act--
(1) so that the base offense level for kidnapping
in section 2A4.1(a) is increased from level 24 to level
32;
(2) so as to delete section 2A4.1(b)(4)(C); and
(3) so that the increase provided by section
2A4.1(b)(5) is 6 levels instead of 3.
(b) Minimum Mandatory Sentence.--Section 1201(g) of title
18, United States Code, is amended by striking ``shall be
subject to paragraph (2)'' in paragraph (1) and all that
follows through paragraph (2) and inserting ``shall include
imprisonment for not less than 20 years.''.
SEC. 105. PENALTIES AGAINST SEX TOURISM.
(a) In General.--Section 2423 of title 18, United States
Code, is amended by striking subsection (b) and inserting the
following:
``(b) Travel With Intent To Engage in Illicit Sexual
Conduct.--A person who travels in interstate commerce or
travels into the United States, or a United States citizen or
an alien admitted for permanent residence in the United States
who travels in foreign commerce, for the purpose of engaging in
any illicit sexual conduct with another person shall be fined
under this title or imprisoned not more than 30 years, or both.
``(c) Engaging in Illicit Sexual Conduct in Foreign
Places.--Any United States citizen or alien admitted for
permanent residence who travels in foreign commerce, and
engages in any illicit sexual conduct with another person shall
be fined under this title or imprisoned not more than 30 years,
or both.
``(d) Ancillary Offenses.--Whoever, for the purpose of
commercial advantage or private financial gain, arranges,
induces, procures, or facilitates the travel of a person
knowing that such a person is traveling in interstate commerce
or foreign commerce for the purpose of engaging in illicit
sexual conduct shall be fined under this title, imprisoned not
more than 30 years, or both.
``(e) Attempt and Conspiracy.--Whoever attempts or
conspires to violate subsection (a), (b), (c), or (d) shall be
punishable in the same manner as a completed violation of that
subsection.
``(f) Definition.--As used in this section, the term
`illicit sexual conduct' means (1) a sexual act (as defined in
section 2246) with a person under 18 years of age that would be
in violation of chapter 109A if the sexual act occurred in the
special maritime and territorial jurisdiction of the United
States; or (2) any commercial sex act (as defined in section
1591) with a person under 18 years of age.
``(g) Defense.--In a prosecution under this section based
on illicit sexual conduct as defined in subsection (f)(2), it
is a defense, which the defendant must establish by a
preponderance of the evidence, that the defendant reasonably
believed that the person with whom the defendant engaged in the
commercial sex act had attained the age of 18 years.''.
(b) Conforming Amendment.--Section 2423(a) of title 18,
United States Code, is amended by striking ``or attempts to do
so,''.
SEC. 106. TWO STRIKES YOU'RE OUT.
(a) In General.--Section 3559 of title 18, United States
Code, is amended by adding at the end the following new
subsection:
``(e) Mandatory Life Imprisonment for Repeated Sex Offenses
Against Children.--
``(1) In general.--A person who is convicted of a
Federal sex offense in which a minor is the victim
shall be sentenced to life imprisonment if the person
has a prior sex conviction in which a minor was the
victim, unless the sentence of death is imposed.
``(2) Definitions.--For the purposes of this
subsection--
``(A) the term `Federal sex offense' means
an offense under section 2241 (relating to
aggravated sexual abuse), 2242 (relating to
sexual abuse), 2244(a)(1) (relating to abusive
sexual contact), 2245 (relating to sexual abuse
resulting in death), 2251 (relating to sexual
exploitation of children), 2251A (relating to
selling or buying of children), 2422(b)
(relating to coercion and enticement of a minor
into prostitution), or 2423(a) (relating to
transportation of minors);
``(B) the term `State sex offense' means an
offense under State law that is punishable by
more than one year in prison and consists of
conduct that would be a Federal sex offense if,
to the extent or in the manner specified in the
applicable provision of this title--
``(i) the offense involved
interstate or foreign commerce, or the
use of the mails; or
``(ii) the conduct occurred in any
commonwealth, territory, or possession
of the United States, within the
special maritime and territorial
jurisdiction of the United States, in a
Federal prison, on any land or building
owned by, leased to, or otherwise used
by or under the control of the
Government of the United States, or in
the Indian country (as defined in
section 1151);
``(C) the term `prior sex conviction' means
a conviction for which the sentence was imposed
before the conduct occurred constituting the
subsequent Federal sex offense, and which was
for a Federal sex offense or a State sex
offense;
``(D) the term `minor' means an individual
who has not attained the age of 17 years; and
``(E) the term `State' has the meaning
given that term in subsection (c)(2).
``(3) Nonqualifying felonies.--An offense described
in section 2422(b) or 2423(a) shall not serve as a
basis for sentencing under this subsection if the
defendant establishes by clear and convincing evidence
that--
``(A) the sexual act or activity was
consensual and not for the purpose of
commercial or pecuniary gain;
``(B) the sexual act or activity would not
be punishable by more than one year in prison
under the law of the State in which it
occurred; or
``(C) no sexual act or activity
occurred.''.
(b) Conforming Amendment.--Sections 2247(a) and 2426(a) of
title 18, United States Code, are each amended by inserting ``,
unless section 3559(e) applies'' before the final period.
SEC. 107. ATTEMPT LIABILITY FOR INTERNATIONAL PARENTAL KIDNAPPING.
Section 1204 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting ``, or attempts
to do so,'' before ``or retains''; and
(2) in subsection (c)--
(A) in paragraph (1), by inserting ``or the
Uniform Child Custody Jurisdiction and
Enforcement Act'' before ``and was''; and
(B) in paragraph (2), by inserting ``or''
after the semicolon.
SEC. 108. PILOT PROGRAM FOR NATIONAL CRIMINAL HISTORY BACKGROUND CHECKS
AND FEASIBILITY STUDY.
(a) Establishment of Pilot Program.--
(1) In general.--Not later than 90 days after the
date of the enactment of this Act, the Attorney General
shall establish a pilot program for volunteer groups to
obtain national and State criminal history background
checks through a 10-fingerprint check to be conducted
utilizing State criminal records and the Integrated
Automated Finger Print Identification system of the
Federal Bureau of Investigation.
(2) State pilot program.--
(A) In general.--The Attorney General shall
designate 3 States as participants in an 18-
month State pilot program.
(B) Volunteer organization requests.--A
volunteer organization in one of the 3 States
participating in the State pilot program under
this paragraph that is part of the Boys and
Girls Clubs of America, the National Mentoring
Partnerships, or the National Council of Youth
Sports may submit a request for a 10-
fingerprint check from the participating State.
A volunteer organization in a participating
State may not submit background check requests
under paragraph (3).
(C) State check.--The participating State
under this paragraph after receiving a request
under subparagraph (B) shall conduct a State
background check and submit a request that a
Federal check be performed through the
Integrated Automated Fingerprint Identification
System of the Federal Bureau of Investigation,
to the Attorney General, in a manner to be
determined by the Attorney General.
(D) Information provided.--Under procedures
established by the Attorney General, any
criminal history record information resulting
from the State and Federal check under
subparagraph (C) shall be provided to the State
or National Center for Missing and Exploited
Children consistent with the National Child
Protection Act.
(E) Costs.--A State may collect a fee to
perform a criminal background check under this
paragraph which may not exceed the actual costs
to the State to perform such a check.
(F) Timing.--For any background check
performed under this paragraph, the State shall
provide the State criminal record information
to the Attorney General within 7 days after
receiving the request from the organization,
unless the Attorney General determines during
the feasibility study that such a check cannot
reasonably be performed within that time
period. The Attorney General shall provide the
criminal history records information to the
National Center for Missing and Exploited
Children within 7 business days after receiving
the request from the State.
(3) Child safety pilot program.--
(A) In general.--The Attorney General shall
establish an 18-month Child Safety Pilot
Program that shall provide for the processing
of 100,000 10-fingerprint check requests from
organizations described in subparagraph (B)
conducted through the Integrated Automated
Fingerprint Identification System of the
Federal Bureau of Investigation.
(B) Eligible organizations.--An
organization described in this subparagraph is
an organization in a State not designated under
paragraph (2) that has received a request
allotment pursuant to subparagraph (C).
(C) Request allotments.--The following
organizations may allot requests as follows:
(i) 33,334 for the Boys and Girls
Clubs of America.
(ii) 33,333 for the National
Mentoring Partnership.
(iii) 33,333 for the National
Council of Youth Sports.
(D) Procedures.--The Attorney General shall
notify the organizations described in
subparagraph (C) of a process by which the
organizations may provide fingerprint cards to
the Attorney General.
(E) Volunteer information required.--An
organization authorized to request a background
check under this paragraph shall--
(i) forward to the Attorney General
the volunteer's fingerprints; and
(ii) obtain a statement completed
and signed by the volunteer that--
(I) sets out the provider
or volunteer's name, address,
date of birth appearing on a
valid identification document
as defined in section 1028 of
title 18, United States Code,
and a photocopy of the valid
identifying document;
(II) states whether the
volunteer has a criminal
record, and, if so, sets out
the particulars of such record;
(III) notifies the
volunteer that the Attorney
General may perform a criminal
history background check and
that the volunteer's signature
to the statement constitutes an
acknowledgment that such a
check may be conducted;
(IV) notifies the volunteer
that prior to and after the
completion of the background
check, the organization may
choose to deny the provider
access to children; and
(V) notifies the volunteer
of his right to correct an
erroneous record held by the
Attorney General.
(F) Timing.--For any background checks
performed under this paragraph, the Attorney
General shall provide the criminal history
records information to the National Center for
Missing and Exploited Children within 14
business days after receiving the request from
the organization.
(G) Determinations of fitness.--
(i) In general.--Consistent with
the privacy protections delineated in
the National Child Protection Act (42
U.S.C. 5119), the National Center for
Missing and Exploited Children may make
a determination whether the criminal
history record information received in
response to the criminal history
background checks conducted under this
paragraph indicates that the provider
or volunteer has a criminal history
record that renders the provider or
volunteer unfit to provide care to
children based upon criteria
established jointly, the National
Center for Missing and Exploited
Children, the Boys and Girls Clubs of
America, the National Mentoring
Partnership, and the National Council
of Youth Sports.
(ii) Child safety pilot program.--
The National Center for Missing and
Exploited Children shall convey that
determination to the organizations
making requests under this paragraph.
(4) Fees collected by attorney general. The
Attorney General may collect a fee which may not exceed
$18 to cover the cost to the Federal Bureau of
Investigation to conduct the background check under
paragraph (2) or (3).
(b) Rights of Volunteers.--Each volunteer who is the
subject of a criminal history background check under this
section is entitled to contact the Attorney General to initiate
procedures to--
(1) obtain a copy of their criminal history record
report; and
(2) challenge the accuracy and completeness of the
criminal history record information in the report.
(c) Authorization of Appropriations.--
(1) In general.--There is authorized to be
appropriated such sums as may be necessary to the
National Center for Missing and Exploited Children for
fiscal years 2004 and 2005 to carry out the
requirements of this section.
(2) State program.--There is authorized to be
appropriated such sums as may be necessary to the
Attorney General for the States designated in
subsection (a)(1) for fiscal years 2004 and 2005 to
establish and enhance finger print technology
infrastructure of the participating State.
(d) Feasibility Study for a System of Background Checks for
Employees and Volunteers.--
(1) Study required.--The Attorney General shall
conduct a feasibility study within 180 days after the
date of the enactment of this Act. The study shall
examine, to the extent discernible, the following:
(A) The current state of fingerprint
capture and processing at the State and local
level, including the current available
infrastructure, State system capacities, and
the time for each State to process a civil or
volunteer print from the time of capture to
submission to the Federal Bureau of
Investigation (FBI).
(B) The intent of the States concerning
participation in a nationwide system of
criminal background checks to provide
information to qualified entities.
(C) The number of volunteers, employees,
and other individuals that would require a
fingerprint-based criminal background check.
(D) The impact on the Integrated Automated
Fingerprint Identification System (IAFIS) of
the Federal Bureau of Investigation in terms of
capacity and impact on other users of the
system, including the effect on Federal Bureau
of Investigation work practices and staffing
levels.
(E) The current fees charged by the Federal
Bureau of Investigation, States and local
agencies, and private companies to process
fingerprints and conduct background checks.
(F) The existence of ``model'' or best
practice programs which could easily be
expanded and duplicated in other States.
(G) The extent to which private companies
are currently performing background checks and
the possibility of using private companies in
the future to perform any of the background
check process, including, but not limited to,
the capture and transmission of fingerprints
and fitness determinations.
(H) The cost of development and operation
of the technology and the infrastructure
necessary to establish a nationwide
fingerprint-based and other criminal background
check system.
(I) The extent of State participation in
the procedures for background checks authorized
in the National Child Protection Act (Public
Law 103-209), as amended by the Volunteers for
Children Act (sections 221 and 222 of Public
Law 105-251).
(J) The extent to which States currently
provide access to nationwide criminal history
background checks to organizations that serve
children.
(K) The extent to which States currently
permit volunteers to appeal adverse fitness
determinations, and whether similar procedures
are required at the Federal level.
(L) The implementation of the 2 pilot
programs created in subsection (a).
(M) Any privacy concerns that may arise
from nationwide criminal background checks.
(N) Any other information deemed relevant
by the Department of Justice.
(2) Interim report.--Based on the findings of the
feasibility study under paragraph (1), the Attorney
General shall, not later than 180 days after the date
of the enactment of this Act, submit to Congress an
interim report, which may include recommendations for a
pilot project to develop or improve programs to collect
fingerprints and perform background checks on
individuals that seek to volunteer with organizations
that work with children, the elderly, or the disabled.
(3) Final report.--Based on the findings of the
pilot project, the Attorney General shall, not later
than 60 days after completion of the pilot project
under this section, submit to Congress a final report,
including recommendations, which may include a proposal
for grants to the States to develop or improve programs
to collect fingerprints and perform background checks
on individuals that seek to volunteer with
organizations that work with children, the elderly, or
the disabled, and which may include recommendations for
amendments to the National Child Protection Act and the
Volunteers for Children Act so that qualified entities
can promptly and affordably conduct nationwide criminal
history background checks on their employees and
volunteers.
TITLE II--INVESTIGATIONS AND PROSECUTIONS
SEC. 201. INTERCEPTIONS OF COMMUNICATIONS IN INVESTIGATIONS OF SEX
OFFENSES.
Section 2516(1) of title 18, United States Code, is
amended--
(1) in paragraph (a), by inserting after ``chapter
37 (relating to espionage),'' the following: ``chapter
55 (relating to kidnapping),''; and
(2) in paragraph (c)--
(A) by inserting ``section 1591 (sex
trafficking of children by force, fraud, or
coercion),'' after ``section 1511 (obstruction
of State or local law enforcement),''; and
(B) by inserting ``section 2251A (selling
or buying of children), section 2252A (relating
to material constituting or containing child
pornography), section 1466A (relating to child
obscenity), section 2260 (production of
sexually explicit depictions of a minor for
importation into the United States), sections
2421, 2422, 2423, and 2425 (relating to
transportation for illegal sexual activity and
related crimes),'' after ``sections 2251 and
2252 (sexual exploitation of children),''.
SEC. 202. NO STATUTE OF LIMITATIONS FOR CHILD ABDUCTION AND SEX CRIMES.
Section 3283 of title 18, United States Code, is amended to
read as follows:
``Sec. 3283. Offenses against children
``No statute of limitations that would otherwise preclude
prosecution for an offense involving the sexual or physical
abuse, or kidnaping, of a child under the age of 18 years shall
preclude such prosecution during the life of the child.''.
SEC. 203. NO PRETRIAL RELEASE FOR THOSE WHO RAPE OR KIDNAP CHILDREN.
Section 3142(e) of title 18, United States Code, is
amended--
(1) by striking ``1901 et seq.), or'' and inserting
``1901 et seq.),''; and
(2) by striking ``of title 18 of the United States
Code'' and inserting ``of this title, or an offense
involving a minor victim under section 1201, 1591,
2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2),
2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or
2425 of this title''.
SEC. 204. SUZANNE'S LAW.
Section 3701(a) of the Crime Control Act of 1990 (42 U.S.C.
5779(a)) is amended by striking ``age of 18'' and inserting
``age of 21''.
TITLE III--PUBLIC OUTREACH
Subtitle A--AMBER Alert
SEC. 301. NATIONAL COORDINATION OF AMBER ALERT COMMUNICATIONS NETWORK.
(a) Coordination Within Department of Justice.--The
Attorney General shall assign an officer of the Department of
Justice to act as the national coordinator of the AMBER Alert
communications network regarding abducted children. The officer
so designated shall be known as the AMBER Alert Coordinator of
the Department of Justice.
(b) Duties.--In acting as the national coordinator of the
AMBER Alert communications network, the Coordinator shall--
(1) seek to eliminate gaps in the network,
including gaps in areas of interstate travel;
(2) work with States to encourage the development
of additional elements (known as local AMBER plans) in
the network;
(3) work with States to ensure appropriate regional
coordination of various elements of the network; and
(4) act as the nationwide point of contact for--
(A) the development of the network; and
(B) regional coordination of alerts on
abducted children through the network.
(c) Consultation With Federal Bureau of Investigation.--In
carrying out duties under subsection (b), the Coordinator shall
notify and consult with the Director of the Federal Bureau of
Investigation concerning each child abduction for which an
alert is issued through the AMBER Alert communications network.
(d) Cooperation.--The Coordinator shall cooperate with the
Secretary of Transportation and the Federal Communications
Commission in carrying out activities under this section.
(e) Report.--Not later than March 1, 2005, the Coordinator
shall submit to Congress a report on the activities of the
Coordinator and the effectiveness and status of the AMBER plans
of each State that has implemented such a plan. The Coordinator
shall prepare the report in consultation with the Secretary of
Transportation.
SEC. 302. MINIMUM STANDARDS FOR ISSUANCE AND DISSEMINATION OF ALERTS
THROUGH AMBER ALERT COMMUNICATIONS NETWORK.
(a) Establishment of Minimum Standards.--Subject to
subsection (b), the AMBER Alert Coordinator of the Department
of Justice shall establish minimum standards for--
(1) the issuance of alerts through the AMBER Alert
communications network; and
(2) the extent of the dissemination of alerts
issued through the network.
(b) Limitations.--(1) The minimum standards established
under subsection (a) shall be adoptable on a voluntary basis
only.
(2) The minimum standards shall, to the maximum extent
practicable (as determined by the Coordinator in consultation
with State and local law enforcement agencies), provide that
appropriate information relating to the special needs of an
abducted child (including health care needs) are disseminated
to the appropriate law enforcement, public health, and other
public officials.
(3) The minimum standards shall, to the maximum extent
practicable (as determined by the Coordinator in consultation
with State and local law enforcement agencies), provide that
the dissemination of an alert through the AMBER Alert
communications network be limited to the geographic areas most
likely to facilitate the recovery of the abducted child
concerned.
(4) In carrying out activities under subsection (a), the
Coordinator may not interfere with the current system of
voluntary coordination between local broadcasters and State and
local law enforcement agencies for purposes of the AMBER Alert
communications network.
(c) Cooperation.--(1) The Coordinator shall cooperate with
the Secretary of Transportation and the Federal Communications
Commission in carrying out activities under this section.
(2) The Coordinator shall also cooperate with local
broadcasters and State and local law enforcement agencies in
establishing minimum standards under this section.
SEC. 303. GRANT PROGRAM FOR NOTIFICATION AND COMMUNICATIONS SYSTEMS
ALONG HIGHWAYS FOR RECOVERY OF ABDUCTED CHILDREN.
(a) Program Required.--The Secretary of Transportation
shall carry out a program to provide 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.
(b) Development Grants.--
(1) In general.--The Secretary may make a grant to
a State under this subsection for the development of a
State program for the use of changeable message signs
or other motorist information systems to notify
motorists about abductions of children. The State
program shall provide for the planning, coordination,
and design of systems, protocols, and message sets that
support the coordination and communication necessary to
notify motorists about abductions of children.
(2) Eligible activities.--A grant under this
subsection may be used by a State for the following
purposes:
(A) To develop general policies and
procedures to guide the use of changeable
message signs or other motorist information
systems to notify motorists about abductions of
children.
(B) To develop guidance or policies on the
content and format of alert messages to be
conveyed on changeable message signs or other
traveler information systems.
(C) To coordinate State, regional, and
local plans for the use of changeable message
signs or other transportation related issues.
(D) To plan secure and reliable
communications systems and protocols among
public safety and transportation agencies or
modify existing communications systems to
support the notification of motorists about
abductions of children.
(E) To plan and design improved systems for
communicating with motorists, including the
capability for issuing wide area alerts to
motorists.
(F) To plan systems and protocols to
facilitate the efficient issuance of child
abduction notification and other key
information to motorists during off-hours.
(G) To provide training and guidance to
transportation authorities to facilitate
appropriate use of changeable message signs and
other traveler information systems for the
notification of motorists about abductions of
children.
(c) Implementation Grants.--
(1) In general.--The Secretary may make a grant to
a State under this subsection for the implementation of
a program for the use of changeable message signs or
other motorist information systems to notify motorists
about abductions of children. A State shall be eligible
for a grant under this subsection if the Secretary
determines that the State has developed a State program
in accordance with subsection (b).
(2) Eligible activities.--A grant under this
subsection may be used by a State to support the
implementation of systems that use changeable message
signs or other motorist information systems to notify
motorists about abductions of children. Such support
may include the purchase and installation of changeable
message signs or other motorist information systems to
notify motorists about abductions of children.
(d) Federal Share.--The Federal share of the cost of any
activities funded by a grant under this section may not exceed
80 percent.
(e) Distribution of Grant Amounts.--The Secretary shall, to
the maximum extent practicable, distribute grants under this
section equally among the States that apply for a grant under
this section within the time period prescribed by the
Secretary.
(f) Administration.--The Secretary shall prescribe
requirements, including application requirements, for the
receipt of grants under this section.
(g) Definition.--In this section, the term ``State'' means
any of the 50 States, the District of Columbia, or Puerto Rico.
(h) Authorization of Appropriations.--There is authorized
to be appropriated to the Secretary to carry out this section
$20,000,000 for fiscal year 2004. Such amounts shall remain
available until expended.
(i) Study of State Programs.--
(1) Study.--The Secretary shall conduct a study to
examine State barriers to the adoption and
implementation of State programs for the use of
communications systems along highways for alerts and
other information for the recovery of abducted
children.
(2) Report.--Not later than 1 year after the date
of enactment of this Act, the Secretary shall transmit
to Congress a report on the results of the study,
together with any recommendations the Secretary
determines appropriate.
SEC. 304. GRANT PROGRAM FOR SUPPORT OF AMBER ALERT COMMUNICATIONS
PLANS.
(a) Program Required.--The Attorney General shall carry out
a program to provide grants to States for the development or
enhancement of programs and activities for the support of AMBER
Alert communications plans.
(b) Activities.--Activities funded by grants under the
program under subsection (a) may include--
(1) the development and implementation of education
and training programs, and associated materials,
relating to AMBER Alert communications plans;
(2) the development and implementation of law
enforcement programs, and associated equipment,
relating to AMBER Alert communications plans;
(3) the development and implementation of new
technologies to improve AMBER Alert communications; and
(4) such other activities as the Attorney General
considers appropriate for supporting the AMBER Alert
communications program.
(c) Federal Share.--The Federal share of the cost of any
activities funded by a grant under the program under subsection
(a) may not exceed 50 percent.
(d) Distribution of Grant Amounts on Geographic Basis.--The
Attorney General shall, to the maximum extent practicable,
ensure the distribution of grants under the program under
subsection (a) on an equitable basis throughout the various
regions of the United States.
(e) Administration.--The Attorney General shall prescribe
requirements, including application requirements, for grants
under the program under subsection (a).
(f) Authorization of Appropriations.--(1) There is
authorized to be appropriated for the Department of Justice
$5,000,000 for fiscal year 2004 to carry out this section and,
in addition, $5,000,000 for fiscal year 2004 to carry out
subsection (b)(3).
(2) Amounts appropriated pursuant to the authorization of
appropriations in paragraph (1) shall remain available until
expended.
SEC. 305. LIMITATION ON LIABILITY.
(a) Except as provided in subsection (b), the National
Center for Missing and Exploited Children, including any of its
officers, employees, or agents, shall not be liable for damages
in any civil action for defamation, libel, slander, or harm to
reputation arising out of any action or communication by the
National Center for Missing and Exploited Children, its
officers, employees, or agents, in connection with any
clearinghouse, hotline or complaint intake or forwarding
program or in connection with activity that is wholly or
partially funded by the United States and undertaken in
cooperation with, or at the direction of a Federal law
enforcement agency.
(b) The limitation in subsection (a) does not apply in any
action in which the plaintiff proves that the National Center
for Missing and Exploited Children, its officers, employees, or
agents acted with actual malice, or provided information or
took action for a purpose unrelated to an activity mandated by
Federal law. For purposes of this subsection, the prevention,
or detection of crime, and the safety, recovery, or protection
of missing or exploited children shall be deemed, per se, to be
an activity mandated by Federal law.
Subtitle B--National Center for Missing and Exploited Children
SEC. 321. INCREASED SUPPORT.
(a) In General.--Section 408(a) of the Missing Children's
Assistance Act (42 U.S.C. 5777(a)) is amended by striking
``fiscal years 2000 through 2003'' and inserting ``fiscal years
2004 through 2005.''.
(b) Annual Grant to National Center for Missing and
Exploited Children.--Section 404(b)(2) of the Missing
Children's Assistance Act (42 U.S.C. 5773(b)(2)) is amended by
striking ``$10,000,000 for each of fiscal years 2000, 2001,
2002, and 2003'' and inserting ``$20,000,000 for each of the
fiscal years 2004 through 2005''.
SEC. 322. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND EXPLOITED
CHILDREN.
Section 3056 of title 18, United States Code, is amended by
adding at the end the following:
``(f) Under the direction of the Secretary of Homeland
Security, officers and agents of the Secret Service are
authorized, at the request of any State or local law
enforcement agency, or at the request of the National Center
for Missing and Exploited Children, to provide forensic and
investigative assistance in support of any investigation
involving missing or exploited children.''.
SEC. 323. CREATION OF CYBER TIPLINE.
Section 404(b)(1) of the Missing Children's Assistance Act
(42 U.S.C. 5773(b)(1)) is amended--
(1) in subparagraph (F), by striking ``and'' at the
end;
(2) in subparagraph (G), by striking the period at
the end and inserting ``; and''; and
(3) by adding at the end the following:
``(H) coordinate the operation of a cyber
tipline to provide online users an effective
means of reporting Internet-related child
sexual exploitation in the areas of--
``(i) distribution of child
pornography;
``(ii) online enticement of
children for sexual acts; and
``(iii) child prostitution.''.
Subtitle C--Sex Offender Apprehension Program
SEC. 341. AUTHORIZATION.
Section 1701(d) of part Q of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd(d)) is
amended--
(1) by redesignating paragraphs (10) and (11) as
(11) and (12), respectively; and
(2) by inserting after paragraph (9) the following:
``(10) assist a State in enforcing a law throughout
the State which requires that a convicted sex offender
register his or her address with a State or local law
enforcement agency and be subject to criminal
prosecution for failure to comply;''.
Subtitle D--Missing Children Procedures in Public Buildings
SEC. 361. SHORT TITLE.
This subtitle may be cited as the ``Code Adam Act of
2003''.
SEC. 362. DEFINITIONS.
In this subtitle, the following definitions apply:
(1) Child.--The term ``child'' means an individual
who is 17 years of age or younger.
(2) Code adam alert.--The term ``Code Adam alert''
means a set of procedures used in public buildings to
alert employees and other users of the building that a
child is missing.
(3) Designated authority.--The term ``designated
authority'' means--
(A) with respect to a public building owned
or leased for use by an Executive agency--
(i) except as otherwise provided in
this paragraph, the Administrator of
General Services;
(ii) in the case of the John F.
Kennedy Center for the Performing Arts,
the Board of Trustees of the John F.
Kennedy Center for the Performing Arts;
(iii) in the case of buildings
under the jurisdiction, custody, and
control of the Smithsonian Institution,
the Board of Regents of the Smithsonian
Institution; or
(iv) in the case of another public
building for which an Executive agency
has, by specific or general statutory
authority, jurisdiction, custody, and
control over the building, the head of
that agency;
(B) with respect to the Supreme Court
Building, the Marshal of the Supreme Court;
with respect to the Thurgood Marshall Federal
Judiciary Building, the Director of the
Administrative Office of United States Courts;
and with respect to all other public buildings
owned or leased for use by an establishment in
the judicial branch of government, the General
Services Administration in consultation with
the United States Marshals Service; and
(C) with respect to a public building owned
or leased for use by an establishment in the
legislative branch of government, the Capitol
Police Board.
(4) Executive agency.--The term ``Executive
agency'' has the same meaning such term has under
section 105 of title 5, United States Code.
(5) Federal agency.--The term ``Federal agency''
means any Executive agency or any establishment in the
legislative or judicial branches of the Government.
(6) Public building.--The term ``public building''
means any building (or portion thereof) owned or leased
for use by a Federal agency.
SEC. 363. PROCEDURES IN PUBLIC BUILDINGS REGARDING A MISSING OR LOST
CHILD.
(a) In General.--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.
(b) Notification and Search Procedures.--Procedures
established under this section shall provide, at a minimum, for
the following:
(1) Notifying security personnel that a child is
missing.
(2) Obtaining a detailed description of the child,
including name, age, eye and hair color, height,
weight, clothing, and shoes.
(3) Issuing a Code Adam alert and providing a
description of the child, using a fast and effective
means of communication.
(4) Establishing a central point of contact.
(5) Monitoring all points of egress from the
building while a Code Adam alert is in effect.
(6) Conducting a thorough search of the building.
(7) Contacting local law enforcement.
(8) Documenting the incident.
Subtitle E--Child Advocacy Center Grants
SEC. 381. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY GENERAL
UNDER VICTIMS OF CHILD ABUSE ACT OF 1990.
(a) Regional Children's Advocacy Centers.--Section 213 of
the Victims of Child Abuse Act of 1990 (42 U.S.C. 13001b) is
amended--
(1) in subsection (c)(4)--
(A) by striking ``and'' at the end of
subparagraph (B)(ii);
(B) in subparagraph (B)(iii), by striking
``Board'' and inserting ``board''; and
(C) by redesignating subparagraphs (C) and
(D) as clauses (iv) and (v), respectively, of
subparagraph (B), and by realigning such
clauses so as to have the same indentation as
the preceding clauses of subparagraph (B); and
(2) in subsection (e), by striking ``Board'' in
each of paragraphs (1)(B)(ii), (2)(A), and (3), and
inserting ``board''.
(b) Authorization of Appropriations.--The text of section
214B of such Act (42 U.S.C. 13004) is amended to read as
follows:
``(a) Sections 213 and 214.--There are authorized to be
appropriated to carry out sections 213 and 214, $15,000,000 for
each of fiscal years 2004 and 2005.
``(b) Section 214A.--There are authorized to be
appropriated to carry out section 214A, $5,000,000 for each of
fiscal years 2004 and 2005.''.
TITLE IV--SENTENCING REFORM
SEC. 401. SENTENCING REFORM.
(a) Enforcement of Sentencing Guidelines for Child
Abduction and Sex Offenses.--Section 3553(b) of title 18,
United States Code is amended--
(1) by striking ``The court'' and inserting the
following:
``(1) In general.--Except as provided in paragraph
(2), the court''; and
(2) by adding at the end the following:
``(2) Child crimes and sexual offenses.--
``(A) Sentencing.--In sentencing a
defendant convicted of an offense under section
1201 involving a minor victim, an offense under
section 1591, or an offense under chapter 71,
109A, 110, or 117, the court shall impose a
sentence of the kind, and within the range,
referred to in subsection (a)(4) unless--
``(i) the court finds that there
exists an aggravating 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 greater than that described;
``(ii) the court finds that there
exists a mitigating circumstance of a
kind or to a degree, that--
``(I) has been
affirmatively and specifically
identified as a permissible
ground of downward departure in
the sentencing guidelines or
policy statements issued under
section 994(a) of title 28,
taking account of any
amendments to such sentencing
guidelines or policy statements
by Congress;
``(II) has not been taken
into consideration by the
Sentencing Commission in
formulating the guidelines; and
``(III) should result in a
sentence different from that
described; or
``(iii) the court finds, on motion
of the Government, that the defendant
has provided substantial assistance in
the investigation or prosecution of
another person who has committed an
offense and that this assistance
established a mitigating 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 lower than that
described.
In determining whether a circumstance was adequately taken into
consideration, the court shall consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission, together with any amendments thereto by
act of Congress. In the absence of an applicable sentencing
guideline, the court shall impose an appropriate sentence,
having due regard for the purposes set forth in subsection
(a)(2). In the absence of an applicable sentencing guideline in
the case of an offense other than a petty offense, the court
shall also have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable to
similar offenses and offenders, and to the applicable policy
statements of the Sentencing Commission, together with any
amendments to such guidelines or policy statements by act of
Congress.''.
(b) Conforming Amendments to Guidelines Manual.--The
Federal Sentencing Guidelines are amended--
(1) in section 5K2.0--
(A) by striking ``Under'' and inserting the
following:
``(a) Downward Departures in Criminal Cases Other Than
Child Crimes and Sexual Offenses.--Under''; and
(B) by adding at the end the following:
``(b) Downward Departures in Child Crimes and Sexual
Offenses.--
``Under 18 U.S.C. Sec. 3553(b)(2), the sentencing court may
impose a sentence below the range established by the applicable
guidelines only if the court finds that there exists a
mitigating circumstance of a kind, or to a degree, that--
``(1) has been affirmatively and specifically
identified as a permissible ground of downward
departure in the sentencing guidelines or policy
statements issued under section 994(a) of title 28,
United States Code, taking account of any amendments to
such sentencing guidelines or policy statements by act
of Congress;
``(2) has not adequately been taken into consideration
by the Sentencing Commission in formulating the
guidelines; and
``(3) should result in a sentence different from that
described.
The grounds enumerated in this Part K of chapter 5 are the sole
grounds that have been affirmatively and specifically
identified as a permissible ground of downward departure in
these sentencing guidelines and policy statements. Thus,
notwithstanding any other reference to authority to depart
downward elsewhere in this Sentencing Manual, a ground of
downward departure has not been affirmatively and specifically
identified as a permissible ground of downward departure within
the meaning of section 3553(b)(2) unless it is expressly
enumerated in this Part K as a ground upon which a downward
departure may be granted.''.
(2) At the end of part K of chapter 5, add the
following:
``Sec. 5K2.22 Specific Offender Characteristics as Grounds for Downward
Departure in child crimes and sexual offenses
(Policy Statement)
``In sentencing a defendant convicted of an offense under
section 1201 involving a minor victim, an offense under section
1591, or an offense under chapter 71, 109A, 110, or 117 of
title 18, United States Code, age may be a reason to impose a
sentence below the applicable guideline range only if and to
the extent permitted by Sec. 5H1.1.
``An extraordinary physical impairment may be a reason to
impose a sentence below the applicable guideline range only if
and to the extent permitted by Sec. 5H1.4. Drug, alcohol, or
gambling dependence or abuse is not a reason for imposing a
sentence below the guidelines.
(3) Section 5K2.20 is amended by striking ``A'' and
inserting ``Except where a defendant is convicted of an
offense under section 1201 involving a minor victim, an
offense under section 1591, or an offense under chapter
71, 109A, 110, or 117 of title 18, United States Code,
a''.
(4) Section 5H1.6 is amended by inserting after the
first sentence the following: ``In sentencing a
defendant convicted of an offense under section 1201
involving a minor victim, an offense under section
1591, or an offense under chapter 71, 109A, 110, or 117
of title 18, United States Code, family ties and
responsibilities and community ties are not relevant in
determining whether a sentence should be below the
applicable guideline range.''.
(5) Section 5K2.13 is amended by--
(A) striking ``or'' before ``(3)''; and
(B) replacing ``public'' with ``public; or
(4) the defendant has been convicted of an
offense under chapter 71, 109A, 110, or 117 of
title 18, United States Code.''.
(c) Statement of Reasons for Imposing a Sentence.--Section
3553(c) of title 18, United States Code, is amended--
(1) by striking ``described.'' and inserting
``described, which reasons must also be stated with
specificity in the written order of judgment and
commitment, except to the extent that the court relies
upon statements received in camera in accordance with
Federal Rule of Criminal Procedure 32. In the event
that the court relies upon statements received in
camera in accordance with Federal Rule of Criminal
Procedure 32 the court shall state that such statements
were so received and that it relied upon the content of
such statements.'';
(2) by inserting ``, together with the order of
judgment and commitment,'' after ``the court's
statement of reasons''; and
(3) by inserting ``and to the Sentencing
Commission,'' after ``to the Probation System''.
(d) Review of a Sentence.--
(1) Review of departures.--Section 3742(e)(3) of
title 18, United States Code, is amended to read as
follows:
``(3) is outside the applicable guideline range,
and
``(A) the district court failed to provide
the written statement of reasons required by
section 3553(c);
``(B) the sentence departs from the
applicable guideline range based on a factor
that--
``(i) does not advance the
objectives set forth in section
3553(a)(2); or
``(ii) is not authorized under
section 3553(b); or
``(iii) is not justified by the
facts of the case; or
``(C) the sentence departs to an
unreasonable degree from the applicable
guidelines range, having regard for the factors
to be considered in imposing a sentence, as set
forth in section 3553(a) of this title and the
reasons for the imposition of the particular
sentence, as stated by the district court
pursuant to the provisions of section 3553(c);
or''.
(2) Standard of review.--The last paragraph of
section 3742(e) of title 18, United States Code, is
amended by striking ``shall give due deference to the
district court's application of the guidelines to the
facts'' and inserting ``, except with respect to
determinations under subsection (3)(A) or (3)(B), shall
give due deference to the district court's application
of the guidelines to the facts. With respect to
determinations under subsection (3)(A) or (3)(B), the
court of appeals shall review de novo the district
court's application of the guidelines to the facts''.
(3) Decision and disposition.--
(A) The first paragraph of section 3742(f)
of title 18, United States Code, is amended by
striking ``the sentence'';
(B) Section 3742(f)(1) of title 18, United
States Code, is amended by inserting ``the
sentence'' before ``was imposed'';
(C) Section 3742(f)(2) of title 18, United
States Code, is amended to read as follows:
``(2) the sentence is outside the applicable
guideline range and the district court failed to
provide the required statement of reasons in the order
of judgment and commitment, or the departure is based
on an impermissible factor, or is to an unreasonable
degree, or the sentence was imposed for an offense for
which there is no applicable sentencing guideline and
is plainly unreasonable, it shall state specific
reasons for its conclusions and--
``(A) if it determines that the sentence is
too high and the appeal has been filed under
subsection (a), it shall set aside the sentence
and remand the case for further sentencing
proceedings with such instructions as the court
considers appropriate, subject to subsection
(g);
``(B) if it determines that the sentence is
too low and the appeal has been filed under
subsection (b), it shall set aside the sentence
and remand the case for further sentencing
proceedings with such instructions as the court
considers appropriate, subject to subsection
(g);''; and
(D) Section 3742(f)(3) of title 18, United
States Code, is amended by inserting ``the
sentence'' before ``is not described''.
(e) Imposition of Sentence Upon Remand.--Section 3742 of
title 18, United States Code, is amended by redesignating
subsections (g) and (h) as subsections (h) and (i) and by
inserting the following after subsection (f):
``(g) Sentencing Upon Remand.--A district court to which a
case is remanded pursuant to subsection (f)(1) or (f)(2) shall
resentence a defendant in accordance with section 3553 and with
such instructions as may have been given by the court of
appeals, except that--
``(1) In determining the range referred to in
subsection 3553(a)(4), the court shall apply the
guidelines issued by the Sentencing Commission pursuant
to section 994(a)(1) of title 28, United States Code,
and that were in effect on the date of the previous
sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of
Congress that was in effect on such date; and
``(2) The court shall not impose a sentence outside
the applicable guidelines range except upon a ground
that--
``(A) was specifically and affirmatively
included in the written statement of reasons
required by section 3553(c) in connection with
the previous sentencing of the defendant prior
to the appeal; and
``(B) was held by the court of appeals, in
remanding the case, to be a permissible ground
of departure.''.
(f) Definitions.--Section 3742 of title 18, United States
Code, as amended by subsection (e), is further amended by
adding at the end the following:
``(j) Definitions.--For purposes of this section--
``(1) a factor is a `permissible' ground of
departure if it--
``(A) advances the objectives set forth in
section 3553(a)(2); and
``(B) is authorized under section 3553(b);
and
``(C) is justified by the facts of the
case; and
``(2) a factor is an `impermissible' ground of
departure if it is not a permissible factor within the
meaning of subsection (j)(1).''.
(g) Reform of Guidelines Governing Acceptance of
Responsibility.--Subject to subsection (j), the Guidelines
Manual promulgated by the Sentencing Commission pursuant to
section 994(a) of title 28, United States Code, is amended--
(1) in section 3E1.1(b)--
(A) by inserting ``upon motion of the
government stating that'' immediately before
``the defendant has assisted authorities''; and
(B) by striking ``taking one or more'' and
all that follows through and including
``additional level'' and insert ``timely
notifying authorities of his intention to enter
a plea of guilty, thereby permitting the
government to avoid preparing for trial and
permitting the government and the court to
allocate their resources efficiently, decrease
the offense level by 1 additional level'';
(2) in the Application Notes to the Commentary to
section 3E1.1, by amending Application Note 6--
(A) by striking ``one or both of ''; and
(B) by adding the following new sentence at
the end: ``Because the Government is in the
best position to determine whether the
defendant has assisted authorities in a manner
that avoids preparing for trial, an adjustment
under subsection (b) may only be granted upon a
formal motion by the Government at the time of
sentencing.''; and
(3) in the Background to section 3E1.1, by striking
``one or more of''.
(h) Improved Data Collection.--Section 994(w) of title 28,
United States Code, is amended to read as follows:
``(w)(1) The Chief Judge of each district court shall
ensure that, within 30 days following entry of judgment in
every criminal case, the sentencing court submits to the
Commission a written report of the sentence, the offense for
which it is imposed, the age, race, sex of the offender, and
information regarding factors made relevant by the guidelines.
The report shall also include--
``(A) the judgment and commitment order;
``(B) the statement of reasons for the sentence
imposed (which shall include the reason for any
departure from the otherwise applicable guideline
range);
``(C) any plea agreement;
``(D) the indictment or other charging document;
``(E) the presentence report; and
``(F) any other information as the Commission finds
appropriate.
``(2) The Commission shall, upon request, make
available to the House and Senate Committees on the
Judiciary, the written reports and all underlying
records accompanying those reports described in this
section, as well as other records received from courts.
``(3) The Commission shall submit to Congress at
least annually an analysis of these documents, any
recommendations for legislation that the Commission
concludes is warranted by that analysis, and an
accounting of those districts that the Commission
believes have not submitted the appropriate information
and documents required by this section.
``(4) The Commission shall make available to the
Attorney General, upon request, such data files as the
Commission may assemble or maintain in electronic form
that include any information submitted under paragraph
(1). Such data files shall be made available in
electronic form and shall include all data fields
requested, including the identity of the sentencing
judge.''.
(i) Sentencing Guidelines Amendments.--(1) Subject to
subsection (j), the Guidelines Manual promulgated by the
Sentencing Commission pursuant to section 994(a) of title 28,
United States Code, is amended as follows:
(A) Application Note 4(b)(i) to section 4B1.5 is
amended to read as follows:
``(i) In general.--For purposes of
subsection (b), the defendant engaged
in a pattern of activity involving
prohibited sexual conduct if on at
least two separate occasions, the
defendant engaged in prohibited sexual
conduct with a minor.''.
(B) Section 2G2.4(b) is amended by adding at the
end the following:
``(4) If the offense involved material that
portrays sadistic or masochistic conduct or other
depictions of violence, increase by 4 levels.
``(5) If the offense involved--
``(A) at least 10 images, but fewer than
150, increase by 2 levels;
``(B) at least 150 images, but fewer than
300, increase by 3 levels;
``(C) at least 300 images, but fewer than
600, increase by 4 levels; and
``(D) 600 or more images, increase by 5
levels.''.
(C) Section 2G2.2(b) is amended by adding at the
end the following:
``(6) If the offense involved--
``(A) at least 10 images, but fewer than
150, increase by 2 levels;
``(B) at least 150 images, but fewer than
300, increase by 3 levels;
``(C) at least 300 images, but fewer than
600, increase by 4 levels; and
``(D) 600 or more images, increase by 5
levels.''.
(2) The Sentencing Commission shall amend the Sentencing
Guidelines to ensure that the Guidelines adequately reflect the
seriousness of the offenses under sections 2243(b), 2244(a)(4),
and 2244(b) of title 18, United States Code.
(j) Conforming Amendments.--
(1) Upon enactment of this Act, the Sentencing
Commission shall forthwith distribute to all courts of
the United States and to the United States Probation
System the amendments made by subsections (b), (g), and
(i) of this section to the sentencing guidelines,
policy statements, and official commentary of the
Sentencing Commission. These amendments shall take
effect upon the date of enactment of this Act, in
accordance with paragraph (5).
(2) On or before May 1, 2005, the Sentencing
Commission shall not promulgate any amendment to the
sentencing guidelines, policy statements, or official
commentary of the Sentencing Commission that is
inconsistent with any amendment made by subsection (b)
or that adds any new grounds of downward departure to
Part K of chapter 5.
(3) With respect to cases covered by the amendments
made by subsection (i) of this section, the Sentencing
Commission may make further amendments to the
sentencing guidelines, policy statements, or official
commentary of the Sentencing Commission, except that
the Commission shall not promulgate any amendments
that, with respect to such cases, would result in
sentencing ranges that are lower than those that would
have applied under such subsection.
(4) At no time may the Commission promulgate any
amendment that would alter or repeal the amendments
made by subsection (g) of this section.
(5) Section 3553(a) of title 18, United States
Code, is amended--
(A) by amending paragraph (4)(A) to read as
follows:
``(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines--
``(i) issued by the Sentencing
Commission pursuant to section
994(a)(1) of title 28, United States
Code, subject to any amendments made to
such guidelines by act of Congress
(regardless of whether such amendments
have yet to be incorporated by the
Sentencing Commission into amendments
issued under section 994(p) of title
28); and
``(ii) that, except as provided in
section 3742(g), are in effect on the
date the defendant is sentenced; or'';
(B) in paragraph (4)(B), by inserting ``,
taking into account any amendments made to such
guidelines or policy statements by act of
Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28)'' after ``Code'';
(C) by amending paragraph (5) to read as
follows:
``(5) any pertinent policy statement--
``(A) issued by the Sentencing Commission
pursuant to section 994(a)(2) of title 28,
United States Code, subject to any amendments
made to such policy statement by act of
Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing
Commission into amendments issued under section
994(p) of title 28); and
``(B) that, except as provided in section
3742(g), is in effect on the date the defendant
is sentenced.''.
(k) Compliance With Statute.--Section 994(a) of title 28,
United States Code, is amended by striking ``consistent with
all pertinent provisions of this title and title 18, United
States Code,'' and inserting ``consistent with all pertinent
provisions of any Federal statute''.
(l) Report by Attorney General.--
(1) Defined term.--For purposes of this section,
the term ``report described in paragraph (3)'' means a
report, submitted by the Attorney General, which states
in detail the policies and procedures that the
Department of Justice has adopted subsequent to the
enactment of this Act--
(A) to ensure that Department of Justice
attorneys oppose sentencing adjustments,
including downward departures, that are not
supported by the facts and the law;
(B) to ensure that Department of Justice
attorneys in such cases make a sufficient
record so as to permit the possibility of an
appeal;
(C) to delineate objective criteria,
specified by the Attorney General, as to which
such cases may warrant consideration of an
appeal, either because of the nature or
magnitude of the sentencing error, its
prevalence in the district, or its prevalence
with respect to a particular judge;
(D) to ensure that Department of Justice
attorneys promptly notify the designated
Department of Justice component in Washington
concerning such adverse sentencing decisions;
and
(E) to ensure the vigorous pursuit of
appropriate and meritorious appeals of such
adverse decisions.
(2) Report required.--
(A) In general.--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 United States Sentencing
Guidelines, the Attorney General shall submit a
report to the Committees on the Judiciary of
the House of Representatives and the Senate
containing the information described under
subparagraph (B).
(B) Contents.--The report submitted
pursuant to subparagraph (A) shall set forth--
(i) the case;
(ii) the facts involved;
(iii) the identity of the district
court judge;
(iv) the district court's stated
reasons, whether or not the court
provided the United States with advance
notice of its intention to depart; and
(v) 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.
(C) Appeal of the departure.--Not later
than 5 days after a decision by the Solicitor
General regarding the authorization of an
appeal of the departure, the Attorney General
shall submit a report to the Committees on the
Judiciary of the House of Representatives and
the Senate that describes the decision of the
Solicitor General and the basis for such
decision.
(3) Effective date.--Paragraph (2) shall take
effect on the day that is 91 days after the date of
enactment of this Act, except that such paragraph shall
not take effect if not more than 90 days after the date
of enactment of this Act the Attorney General has
submitted to the Judiciary Committees of the House of
Representatives and the Senate the report described in
paragraph (3).
(m) Reform of Existing Permissible Grounds of Downward
Departures.--Not later than 180 days after the enactment of
this Act, the United States Sentencing Commission shall--
(1) review the grounds of downward departure that
are authorized by the sentencing guidelines, policy
statements, and official commentary of the Sentencing
Commission; and
(2) promulgate, pursuant to section 994 of title
28, United States Code--
(A) appropriate amendments to the
sentencing guidelines, policy statements, and
official commentary to ensure that the
incidence of downward departures are
substantially reduced;
(B) a policy statement authorizing a
downward departure of not more than 4 levels if
the Government files a motion for such
departure pursuant to an early disposition
program authorized by the Attorney General and
the United States Attorney; and
(C) any other conforming amendments to the
sentencing guidelines, policy statements, and
official commentary of the Sentencing
Commission necessitated by this Act, including
a revision of paragraph 4(b) of part A of
chapter 1 and a revision of section 5K2.0.
(n) Composition of Sentencing Commission.--
(1) In general.--Section 991(a) of title 28, United
States Code, is amended by striking ``At least three''
and inserting ``Not more than 3''.
(2) Applicability.--The amendment made under
paragraph (1) shall not apply to any person who is
serving, or who has been nominated to serve, as a
member of the Sentencing Commission on the date of
enactment of this Act.
TITLE V--OBSCENITY AND PORNOGRAPHY
Subtitle A--Child Obscenity and Pornography Prevention
SEC. 501. 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. 502. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.
(a) Section 2256(8) of title 18, United States Code, is
amended--
(1) so that subparagraph (B) reads as follows:
``(B) such visual depiction is a digital
image, computer image, or computer-generated
image that is, or is indistinguishable from,
that of a minor engaging in sexually explicit
conduct; or'':
(2) by striking ``; or'' at the end of subparagraph
(C) and inserting a period; and
(3) by striking subparagraph (D).
(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 by inserting at the end the
following new paragraphs:
``(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; and
``(11) 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) Section 2252A(c) of title 18, United States Code, is
amended to read as follows:
``(c) It shall be an affirmative defense to a charge of
violating paragraph (1), (2), (3)(A), (4), or (5) of subsection
(a) that--
``(1)(A) the alleged child pornography was produced
using an actual person or persons engaging in sexually
explicit conduct; and
``(B) each such person was an adult at the time the
material was produced; or
``(2) the alleged child pornography was not
produced using any actual minor or minors.
No affirmative defense under subsection (c)(2) shall be
available in any prosecution that involves child pornography as
described in section 2256(8)(C). A defendant may not assert an
affirmative defense to a charge of violating paragraph (1),
(2), (3)(A), (4), or (5) of subsection (a) unless, within the
time provided for filing pretrial motions or at such time prior
to trial as the judge may direct, but in no event later than 10
days before the commencement of the trial, the defendant
provides the court and the United States with notice of the
intent to assert such defense and the substance of any expert
or other specialized testimony or evidence upon which the
defendant intends to rely. If the defendant fails to comply
with this subsection, the court shall, absent a finding of
extraordinary circumstances that prevented timely compliance,
prohibit the defendant from asserting such defense to a charge
of violating paragraph (1), (2), (3)(A), (4), or (5) of
subsection (a) or presenting any evidence for which the
defendant has failed to provide proper and timely notice.''.
SEC. 503. CERTAIN ACTIVITIES RELATING TO MATERIAL CONSTITUTING OR
CONTAINING CHILD PORNOGRAPHY.
Section 2252A of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking paragraph (3) and inserting
the following:
``(3) knowingly--
``(A) reproduces any child pornography for
distribution through the mails, or in
interstate or foreign commerce by any means,
including by computer; or
``(B) advertises, promotes, presents,
distributes, or solicits through the mails, or
in interstate or foreign commerce by any means,
including by computer, any material or
purported material in a manner that reflects
the belief, or that is intended to cause
another to believe, that the material or
purported material is, or contains--
``(i) an obscene visual depiction
of a minor engaging in sexually
explicit conduct; or
``(ii) a visual depiction of an
actual minor engaging in sexually
explicit conduct;'';
(B) in paragraph (4), by striking ``or'' at
the end;
(C) in paragraph (5), by striking the comma
at the end and inserting ``; or''; and
(D) by adding after paragraph (5) the
following:
``(6) knowingly distributes, offers, sends, or
provides to a minor any visual depiction, including any
photograph, film, video, picture, or computer generated
image or picture, whether made or produced by
electronic, mechanical, or other means, where such
visual depiction is, or appears to be, of a minor
engaging in sexually explicit conduct--
``(A) that has been mailed, shipped, or
transported in interstate or foreign commerce
by any means, including by computer;
``(B) that was produced using materials
that have been mailed, shipped, or transported
in interstate or foreign commerce by any means,
including by computer; or
``(C) which distribution, offer, sending,
or provision is accomplished using the mails or
by transmitting or causing to be transmitted
any wire communication in interstate or foreign
commerce, including by computer,
for purposes of inducing or persuading a minor to
participate in any activity that is illegal.''; and
(2) in subsection (b)(1), by striking ``paragraphs
(1), (2), (3), or (4)'' and inserting ``paragraph (1),
(2), (3), (4), or (6)''.
SEC. 504. OBSCENE CHILD PORNOGRAPHY.
(a) In General.--Chapter 71 of title 18, United States
Code, is amended by inserting after section 1466 the following:
``Sec. 1466A. Obscene visual representations of the sexual abuse of
children
``(a) In General.--Any person who, in a circumstance
described in subsection (d), 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)(A) depicts a minor engaging in sexually
explicit conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to
be, of a minor engaging in graphic bestiality, sadistic
or masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite
sex; and
``(B) lacks serious literary, artistic, political,
or scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1), including the
penalties provided for cases involving a prior conviction.
``(b) Additional Offenses.--Any person who, in a
circumstance described in subsection (d), knowingly possesses a
visual depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that--
``(1)(A) depicts a minor engaging in sexually
explicit conduct; and
``(B) is obscene; or
``(2)(A) depicts an image that is, or appears to
be, of a minor engaging in graphic bestiality, sadistic
or masochistic abuse, or sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-
anal, whether between persons of the same or opposite
sex; and
``(B) lacks serious literary, artistic, political,
or scientific value;
or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2), including the
penalties provided for cases involving a prior conviction.
``(c) Nonrequired Element of Offense.--It is not a required
element of any offense under this section that the minor
depicted actually exist.
``(d) Circumstances.--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) Affirmative Defense.--It shall be an affirmative
defense to a charge of violating subsection (b) that the
defendant--
``(1) possessed less than 3 such visual depictions;
and
``(2) promptly and in good faith, and without
retaining or allowing any person, other than a law
enforcement agency, to access any such visual
depiction--
``(A) took reasonable steps to destroy each
such visual depiction; or
``(B) reported the matter to a law
enforcement agency and afforded that agency
access to each such visual depiction.
``(f) Definitions.--For purposes of this section--
``(1) the term `visual depiction' includes
undeveloped film and videotape, and data stored on a
computer disk or by electronic means which is capable
of conversion into a visual image, and also includes
any photograph, film, video, picture, digital image or
picture, computer image or picture, or computer
generated image or picture, whether made or produced by
electronic, mechanical, or other means;
``(2) the term `sexually explicit conduct' has the
meaning given the term in section 2256(2)(A) or
2256(2)(B); and
``(3) the term `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.''.
(b) Technical and Conforming Amendment.--The table of
sections at the beginning of such chapter is amended by
inserting after the item relating to section 1466 the following
new item:
``1466A. Obscene visual representations of the sexual abuse of
children.''.
(c) Sentencing Guidelines.--
(1) Category.--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 of
such title, shall be the category of offenses described
in section 2G2.2 of the Sentencing Guidelines.
(2) Ranges.--The Sentencing Commission may
promulgate guidelines specifically governing offenses
under section 1466A of title 18, United States Code, if
such guidelines do not result in sentencing ranges that
are lower than those that would have applied under
paragraph (1).
SEC. 505. ADMISSIBILITY OF EVIDENCE.
Section 2252A of title 18, United States Code, is amended
by adding at the end the following:
``(e) Admissibility of Evidence.--On motion of the
government, in any prosecution under this chapter or section
1466A, except for good cause shown, the name, address, social
security number, or other nonphysical identifying information,
other than the age or approximate age, of any minor who is
depicted in any child pornography shall not be admissible and
may be redacted from any otherwise admissible evidence, and the
jury shall be instructed, upon request of the United States,
that it can draw no inference from the absence of such evidence
in deciding whether the child pornography depicts an actual
minor.''.
SEC. 506. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR
DISTRIBUTION IN THE UNITED STATES.
Section 2251 of title 18, United States Code, is amended--
(1) by striking ``subsection (d)'' each place that
term appears and inserting ``subsection (e)'';
(2) by redesignating subsections (c) and (d) as
subsections (d) and (e), respectively; and
(3) by inserting after subsection (b) the
following:
``(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 territories or possessions,
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 territories or
possessions, by any means, including by computer or
mail; or
``(B) the person transports such visual depiction
to the United States, its territories or possessions,
by any means, including by computer or mail.''.
SEC. 507. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.
Sections 2251(e) (as redesignated by section 506(2)),
2252(b), and 2252A(b) of title 18, United States Code, are each
amended--
(1) by inserting ``chapter 71,'' immediately before
each occurrence of ``chapter 109A,''; and
(2) by inserting ``or under section 920 of title 10
(article 120 of the Uniform Code of Military
Justice),'' immediately before each occurrence of ``or
under the laws''.
SEC. 508. 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 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), by striking
subparagraph (B);
(B) by redesignating paragraphs (6) and (7)
as paragraphs (7) and (8) respectively;
(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);''; 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. 509. 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. 510. CIVIL REMEDIES.
Section 2252A of title 18, United States Code, as amended
by this Act, is amended by adding at the end the following:
``(f) Civil Remedies.--
``(1) In general.--Any person aggrieved by reason
of the conduct prohibited under subsection (a) or (b)
or section 1466A may commence a civil action for the
relief set forth in paragraph (2).
``(2) Relief.--In any action commenced in
accordance with paragraph (1), the court may award
appropriate relief, including--
``(A) temporary, preliminary, or permanent
injunctive relief;
``(B) compensatory and punitive damages;
and
``(C) the costs of the civil action and
reasonable fees for attorneys and expert
witnesses.''.
SEC. 511. RECORDKEEPING REQUIREMENTS.
(a) In General.--Section 2257 of title 18, United States
Code, is amended--
(1) in subsection (d)(2), by striking ``of this
section'' and inserting ``of this chapter or chapter
71,'';
(2) in subsection (h)(3), by inserting ``, computer
generated image, digital image, or picture,'' after
``video tape''; and
(3) in subsection (i)--
(A) by striking ``not more than 2 years''
and inserting ``not more than 5 years''; and
(B) by striking ``5 years'' and inserting
``10 years''.
(b) Report.--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.
SEC. 512. SENTENCING ENHANCEMENTS FOR INTERSTATE TRAVEL TO ENGAGE IN
SEXUAL ACT WITH A JUVENILE.
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this section, the
United States Sentencing Commission shall review and, as
appropriate, amend the Federal Sentencing Guidelines and policy
statements to ensure that guideline penalties are adequate in
cases that involve interstate travel with the intent to engage
in a sexual act with a juvenile in violation of section 2423 of
title 18, United States Code, to deter and punish such conduct.
SEC. 513. MISCELLANEOUS PROVISIONS.
(a) Appointment of Trial Attorneys.--
(1) In general.--Not later than 6 months after the
date of enactment of this Act, the Attorney General
shall appoint 25 additional trial attorneys to the
Child Exploitation and Obscenity Section of the
Criminal Division of the Department of Justice or to
appropriate U.S. Attorney's Offices, and those trial
attorneys shall have as their primary focus, the
investigation and prosecution of Federal child
pornography and obscenity laws.
(2) Authorization of appropriations.--There are
authorized to be appropriated to the Department of
Justice such sums as may be necessary to carry out this
subsection.
(b) Report to Congressional Committees.--
(1) In general.--Not later than 9 months after the
date of enactment of this Act, and every 2 years
thereafter, the Attorney General shall report to the
Chairpersons and Ranking Members of the Committees on
the Judiciary of the Senate and the House of
Representatives on the Federal enforcement actions
under chapter 110 or section 1466A of title 18, United
States Code.
(2) Contents.--The report required under paragraph
(1) shall include--
(A) an evaluation of the prosecutions
brought under chapter 110 or section 1466A of
title 18, United States Code;
(B) an outcome-based measurement of
performance; and
(C) an analysis of the technology being
used by the child pornography industry.
(c) Sentencing Guidelines.--Pursuant to its authority under
section 994(p) of title 28, United States Code, and in
accordance with this section, the United States Sentencing
Commission shall review and, as appropriate, amend the Federal
Sentencing Guidelines and policy statements to ensure that the
guidelines are adequate to deter and punish conduct that
involves a violation of paragraph (3)(B) or (6) of section
2252A(a) of title 18, United States Code, as created by this
Act. With respect to the guidelines for section 2252A(a)(3)(B),
the Commission shall consider the relative culpability of
promoting, presenting, describing, or distributing material in
violation of that section as compared with solicitation of such
material.
Subtitle B--Truth in Domain Names
SEC. 521. MISLEADING DOMAIN NAMES ON THE INTERNET.
(a) In General.--Chapter 110 of title 18, United States
Code, is amended by inserting after section 2252A the
following:
``Sec. 2252B. Misleading domain names on the Internet
``(a) Whoever knowingly uses a misleading domain name on
the Internet with the intent to deceive a person into viewing
material constituting obscenity shall be fined under this title
or imprisoned not more than 2 years, or both.
``(b) Whoever knowingly uses a misleading domain name on
the Internet with the intent to deceive a minor into viewing
material that is harmful to minors on the Internet shall be
fined under this title or imprisoned not more than 4 years, or
both.
``(c) For the purposes of this section, 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.
``(d) For the purposes of this section, 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 a 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.
``(e) For the purposes of subsection (d), the term `sex'
means acts of masturbation, sexual intercourse, or physcial
contact with a person's genitals, or the condition of human
male or female genitals when in a state of sexual stimulation
or arousal.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 110 of title 18, United States Code, is
amended by inserting after the item relating to section 2252A
the following new item:
``2252B. Misleading domain names on the Internet.''.
TITLE VI--MISCELLANEOUS PROVISIONS
SEC. 601. PENALTIES FOR USE OF MINORS IN CRIMES OF VIOLENCE.
Chapter 1 of title 18, United States Code, is amended by
adding at the end the following:
``Sec. 25. Use of minors in crimes of violence
``(a) Definitions.--In this section, the following
definitions shall apply:
``(1) Crime of violence.--The term `crime of
violence' has the meaning set forth in section 16.
``(2) Minor.--The term `minor' means a person who
has not reached 18 years of age.
``(3) Uses.--The term `uses' means employs, hires,
persuades, induces, entices, or coerces.
``(b) Penalties.--Any person who is 18 years of age or
older, who intentionally uses a minor to commit a crime of
violence for which such person may be prosecuted in a court of
the United States, or to assist in avoiding detection or
apprehension for such an offense, shall--
``(1) for the first conviction, be subject to twice
the maximum term of imprisonment and twice the maximum
fine that would otherwise be authorized for the
offense; and
``(2) for each subsequent conviction, be subject to
3 times the maximum term of imprisonment and 3 times
the maximum fine that would otherwise be authorized for
the offense.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 1 of title 18, United States Code, is
amended by adding at the end the following:
``25. Use of minors in crimes of violence.''.
SEC. 602. SENSE OF CONGRESS.
(a) Focus of Investigation and Prosecution.--It is the
sense of Congress that the Child Exploitation and Obscenity
Section of the Criminal Division of 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.
(b) Voluntary Limitation on Website Front Pages.--It is the
sense of 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.
Section 223 of the Communications Act of 1934 (47 U.S.C.
223) is amended--
(1) in subsection (a)(1)--
(A) in subparagraph (A), by striking ``,
lewd, lascivious, filthy, or indecent'' and
inserting ``or child pornography''; and
(B) in subparagraph (B), by striking
``indecent'' and inserting ``child
pornography''; and
(2) in subsection (d)(1), by striking ``, in
context, depicts or describes, in terms patently
offensive as measured by contemporary community
standards, sexual or excretory activities or organs''
and inserting ``is obscene or child pornography''.
SEC. 604. INTERNET AVAILABILITY OF INFORMATION CONCERNING REGISTERED
SEX OFFENDERS.
(a) In General.--Section 170101(e)(2) of the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(e)(2))
is amended by adding at the end the following: ``The release of
information under this paragraph shall include the maintenance
of an Internet site containing such information that is
available to the public and instructions on the process for
correcting information that a person alleges to be
erroneous.''.
(b) Compliance Date.--Each State shall implement the
amendment made by this section within 3 years after the date of
enactment of this Act, except that the Attorney General may
grant an additional 2 years to a State that is making a good
faith effort to implement the amendment made by this section.
(c) National Internet Site.--The Crimes Against Children
Section of the Criminal Division of the Department of Justice
shall create a national Internet site that links all State
Internet sites established pursuant to this section.
SEC. 605. REGISTRATION OF CHILD PORNOGRAPHERS IN THE NATIONAL SEX
OFFENDER REGISTRY.
(a) Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Program.--Section 170101 of the
Violent Crime Control and Law Enforcement Act of 1994 (42
U.S.C. 14071) is amended--
(1) by striking the section heading and inserting
the following:
``SEC. 170101. JACOB WETTERLING CRIMES AGAINST CHILDREN AND SEXUALLY
VIOLENT OFFENDER REGISTRATION PROGRAM.'';
and
(2) in subsection (a)(3)--
(A) in clause (vii), by striking ``or'' at
the end;
(B) by redesignating clause (viii) as
clause (ix); and
(C) by inserting after clause (vii) the
following:
``(viii) production or distribution
of child pornography, as described in
section 2251, 2252, or 2252A of title
18, United States Code; or''.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Department of Justice, for each of
fiscal years 2004 through 2007, such sums as may be necessary
to carry out the amendments made by this section.
SEC. 606. GRANTS TO STATES FOR COSTS OF COMPLIANCE WITH NEW SEX
OFFENDER REGISTRY REQUIREMENTS.
Section 170101(i)(3) of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 14071(i)(3) is amended to
read as follows:
``(3) Authorization of Appropriations.--There is
authorized to be appropriated for each of the fiscal
years 2004 through 2007 such sums as may be necessary
to carry out the provisions of section 1701(d)(10) of
the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3796dd(d)(10)), as added by the PROTECT
Act.''.
SEC. 607. SAFE ID ACT.
(a) Short Title.--This section may be cited as the ``Secure
Authentication Feature and Enhanced Identification Defense Act
of 2003'' or ``SAFE ID Act''.
(b) Fraud and False Statements.--
(1) Offenses.--Section 1028(a) of title 18, United
States Code, is amended--
(A) in paragraph (1), by inserting ``,
authentication feature,'' after ``an
identification document'';
(B) in paragraph (2)--
(i) by inserting ``, authentication
feature,'' after ``an identification
document''; and
(ii) by inserting ``or feature''
after ``such document'';
(C) in paragraph (3), by inserting ``,
authentication features,'' after
``possessor)'';
(D) in paragraph (4)--
(i) by inserting ``, authentication
feature,'' after ``possessor)''; and
(ii) by inserting ``or feature''
after ``such document'';
(E) in paragraph (5), by inserting ``or
authentication feature'' after ``implement''
each place that term appears;
(F) in paragraph (6)--
(i) by inserting ``or
authentication feature'' before ``that
is or appears'';
(ii) by inserting ``or
authentication feature'' before ``of
the United States'';
(iii) by inserting ``or feature''
after ``such document''; and
(iv) by striking ``or'' at the end;
(G) in paragraph (7), by inserting ``or''
after the semicolon; and
(H) by inserting after paragraph (7) the
following:
``(8) knowingly traffics in false authentication
features for use in false identification documents,
document-making implements, or means of
identification;''.
(2) Penalties.--Section 1028(b) of title 18, United
States Code, is amended--
(A) in paragraph (1)--
(i) in subparagraph (A)--
(I) by inserting ``,
authentication feature,''
before ``or false''; and
(II) in clause (i), by
inserting ``or authentication
feature'' after ``document'';
and
(ii) in subparagraph (B), by
inserting ``, authentication
features,'' before ``or false''; and
(B) in paragraph (2)(A), by inserting ``,
authentication feature,'' before ``or a
false''.
(3) Circumstances.--Section 1028(c)(1) of title 18,
United States Code, is amended by inserting ``,
authentication feature,'' before ``or false'' each
place that term appears.
(4) Definitions.--Section 1028(d) of title 18,
United States Code, is amended--
(A) by redesignating paragraphs (1), (2),
(3), (4), (5), (6), (7), and (8) as paragraphs
(2), (3), (4), (7), (8), (9), (10), and (11),
respectively;
(B) by inserting before paragraph (2), as
redesignated, the following:
``(1) the term `authentication feature' means any
hologram, watermark, certification, symbol, code,
image, sequence of numbers or letters, or other feature
that either individually or in combination with another
feature is used by the issuing authority on an
identification document, document-making implement, or
means of identification to determine if the document is
counterfeit, altered, or otherwise falsified;'';
(C) in paragraph (4)(A), as redesignated,
by inserting ``or was issued under the
authority of a governmental entity but was
subsequently altered for purposes of deceit''
after ``entity'';
(D) by inserting after paragraph (4), as
redesignated, the following:
``(5) the term `false authentication feature' means
an authentication feature that--
``(A) is genuine in origin, but, without
the authorization of the issuing authority, has
been tampered with or altered for purposes of
deceit;
``(B) is genuine, but has been distributed,
or is intended for distribution, without the
authorization of the issuing authority and not
in connection with a lawfully made
identification document, document-making
implement, or means of identification to which
such authentication feature is intended to be
affixed or embedded by the respective issuing
authority; or
``(C) appears to be genuine, but is not;
``(6) the term `issuing authority'--
``(A) means any governmental entity or
agency that is authorized to issue
identification documents, means of
identification, or authentication features; and
``(B) includes the United States
Government, a State, a political subdivision of
a State, a foreign government, a political
subdivision of a foreign government, or an
international government or quasi-governmental
organization;'';
(E) in paragraph (10), as redesignated, by
striking ``and'' at the end;
(F) in paragraph (11), as redesignated, by
striking the period at the end and inserting
``; and''; and
(G) by adding at the end the following:
``(12) the term `traffic' means--
``(A) to transport, transfer, or otherwise
dispose of, to another, as consideration for
anything of value; or
``(B) to make or obtain control of with
intent to so transport, transfer, or otherwise
dispose of.''.
(5) Additional penalties.--Section 1028 of title
18, United States Code, is amended--
(A) by redesignating subsection (h) as
subsection (i); and
(B) by inserting after subsection (g) the
following:
``(h) Forfeiture; Disposition.--In the circumstance in
which any person is convicted of a violation of subsection (a),
the court shall order, in addition to the penalty prescribed,
the forfeiture and destruction or other disposition of all
illicit authentication features, identification documents,
document-making implements, or means of identification.''.
(6) Technical and conforming amendment.--Section
1028 of title 18, United States Code, is amended in the
heading by inserting ``, AUTHENTICATION FEATURES,''
after ``DOCUMENTS''.
SEC. 608. ILLICIT DRUG ANTI-PROLIFERATION ACT.
(a) Short Title.--This section may be cited as the
``Illicit Drug Anti-Proliferation Act of 2003''.
(b) Offenses.--
(1) In general.--Section 416(a) of the Controlled
Substances Act (21 U.S.C. 856(a)) is amended--
(A) in paragraph (1), by striking ``open or
maintain any place'' and inserting ``open,
lease, rent, use, or maintain any place,
whether permanently or temporarily,''; and
(B) by striking paragraph (2) and inserting
the following:
``(2) manage or control any place, whether
permanently or temporarily, either as an owner, lessee,
agent, employee, occupant, or mortgagee, and knowingly
and intentionally rent, lease, profit from, or make
available for use, with or without compensation, the
place for the purpose of unlawfully manufacturing,
storing, distributing, or using a controlled
substance.''.
(2) Technical amendment.--The heading to section
416 of the Controlled Substances Act (21 U.S.C. 856) is
amended to read as follows:
``SEC. 416. MAINTAINING DRUG-INVOLVED PREMISES.''.
(3) Conforming amendment.--The table of contents to
title II of the Comprehensive Drug Abuse and Prevention
Act of 1970 is amended by striking the item relating to
section 416 and inserting the following:
``Sec. 416. Maintaining drug-involved premises.''.
(c) Civil Penalty and Equitable Relief for Maintaining
Drug-Involved Premises.--Section 416 of the Controlled
Substances Act (21 U.S.C. 856) is amended by adding at the end
the following:
``(d)(1) Any person who violates subsection (a) shall be
subject to a civil penalty of not more than the greater of--
``(A) $250,000; or
``(B) 2 times the gross receipts, either known or
estimated, that were derived from each violation that
is attributable to the person.
``(2) If a civil penalty is calculated under paragraph
(1)(B), and there is more than 1 defendant, the court may
apportion the penalty between multiple violators, but each
violator shall be jointly and severally liable for the civil
penalty under this subsection.
``(e) Any person who violates subsection (a) shall be
subject to declaratory and injunctive remedies as set forth in
section 403(f).''.
(d) Declaratory and Injunctive Remedies.--Section 403(f)(1)
of the Controlled Substances Act (21 U.S.C. 843(f)(1)) is
amended by striking ``this section or section 402'' and
inserting ``this section, section 402, or 416''.
(e) Sentencing Commission Guidelines.--The United States
Sentencing Commission shall--
(1) review the Federal sentencing guidelines with
respect to offenses involving gamma hydroxybutyric acid
(GHB);
(2) consider amending the Federal sentencing
guidelines to provide for increased penalties such that
those penalties reflect the seriousness of offenses
involving GHB and the need to deter them; and
(3) take any other action the Commission considers
necessary to carry out this section.
(f) Authorization of Appropriations for a Demand Reduction
Coordinator.--There is authorized to be appropriated $5,900,000
to the Drug Enforcement Administration of the Department of
Justice for the hiring of a special agent in each State to
serve as a Demand Reduction Coordinator.
(g) Authorization of Appropriations for Drug Education.--
There is authorized to be appropriated such sums as necessary
to the Drug Enforcement Administration of the Department of
Justice to educate youth, parents, and other interested adults
about club drugs.
SEC. 609. DEFINITION OF VEHICLE.
Section 1993(c) of title 18, United States Code, is
amended--
(1) in paragraph (7), by striking ``and'' at the
end;
(2) in paragraph (8), by striking the period at the
end and inserting ``; and''; and
(3) by adding at the end the following:
``(9) the term `vehicle' means 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. AUTHORIZATION OF JOHN DOE DNA INDICTMENTS.
(a) Limitation.--Section 3282 of title 18, United States
Code, is amended--
(1) by striking ``Except'' and inserting the
following:
``(a) In General.--Except''; and
(2) by adding at the end the following:
``(b) DNA Profile Indictment.--
``(1) In general.--In any indictment for an offense
under chapter 109A for which the identity of the
accused is unknown, it shall be sufficient to describe
the accused as an individual whose name is unknown, but
who has a particular DNA profile.
``(2) Exception.--Any indictment described under
paragraph (1), which is found not later than 5 years
after the offense under chapter 109A is committed,
shall not be subject to--
``(A) the limitations period described
under subsection (a); and
``(B) the provisions of chapter 208 until
the individual is arrested or served with a
summons in connection with the charges
contained in the indictment.
``(3) Defined term.--For purposes of this
subsection, the term `DNA profile' means a set of DNA
identification characteristics.''.
(b) Rules of Criminal Procedure.--Rule 7(c)(1) of the
Federal Rules of Criminal Procedure is amended by adding at the
end the following: ``For purposes of an indictment referred to
in section 3282 of title 18, United States Code, for which the
identity of the defendant is unknown, it shall be sufficient
for the indictment to describe the defendant as an individual
whose name is unknown, but who has a particular DNA profile, as
that term is defined in that section 3282.''.
SEC. 611. TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS OF
DOMESTIC VIOLENCE, STALKING, OR SEXUAL ASSAULT.
Subtitle B of the Violence Against Women Act of 1994 (42
U.S.C. 13701 note; 108 Stat. 1925) is amended by adding at the
end the following:
``CHAPTER 11--TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS
OF DOMESTIC VIOLENCE, STALKING, OR SEXUAL ASSAULT
``SEC. 40299. TRANSITIONAL HOUSING ASSISTANCE GRANTS FOR CHILD VICTIMS
OF DOMESTIC VIOLENCE, STALKING, OR SEXUAL ASSAULT.
``(a) In General.--The Attorney General, acting in
consultation with the Director of the Violence Against Women
Office of the Department of Justice, shall award grants under
this section to States, units of local government, Indian
tribes, and other organizations (referred to in this section as
the `recipient') to carry out programs to provide assistance to
minors, adults, and their dependents--
``(1) who are homeless, or in need of transitional
housing or other housing assistance, as a result of
fleeing a situation of domestic violence; and
``(2) for whom emergency shelter services or other
crisis intervention services are unavailable or
insufficient.
``(b) Grants.--Grants awarded under this section may be
used for programs that provide--
``(1) short-term housing assistance, including
rental or utilities payments assistance and assistance
with related expenses such as payment of security
deposits and other costs incidental to relocation to
transitional housing for persons described in
subsection (a); and
``(2) support services designed to enable a minor,
an adult, or a dependent of such minor or adult, who is
fleeing a situation of domestic violence to--
``(A) locate and secure permanent housing;
and
``(B) integrate into a community by
providing that minor, adult, or dependent with
services, such as transportation, counseling,
child care services, case management,
employment counseling, and other assistance.
``(c) Duration.--
``(1) In general.--Except as provided in paragraph
(2), a minor, an adult, or a dependent, who receives
assistance under this section shall receive that
assistance for not more than 18 months.
``(2) Waiver.--The recipient of a grant under this
section may waive the restriction under paragraph (1)
for not more than an additional 6 month period with
respect to any minor, adult, or dependent, who--
``(A) has made a good-faith effort to
acquire permanent housing; and
``(B) has been unable to acquire permanent
housing.
``(d) Application--
``(1) In general.--Each eligible entity desiring a
grant under this section shall submit an application to
the Attorney General at such time, in such manner, and
accompanied by such information as the Attorney General
may reasonably require.
``(2) Contents.--Each application submitted
pursuant to paragraph (1) shall--
``(A) describe the activities for which
assistance under this section is sought; and
``(B) provide such additional assurances as
the Attorney General determines to be essential
to ensure compliance with the requirements of
this section.
``(3) Application.--Nothing in this subsection
shall be construed to require--
``(A) victims to participate in the
criminal justice system in order to receive
services; or
``(B) domestic violence advocates to breach
client confidentiality.
``(e) Report to the Attorney General--
``(1) In general.--A recipient of a grant under
this section shall annually prepare and submit to the
Attorney General a report describing--
``(A) the number of minors, adults, and
dependents assisted under this section; and
``(B) the types of housing assistance and
support services provided under this section.
``(2) Contents.--Each report prepared and submitted
pursuant to paragraph (1) shall include information
regarding--
``(A) the amount of housing assistance
provided to each minor, adult, or dependent,
assisted under this section and the reason for
that assistance;
``(B) the number of months each minor,
adult, or dependent, received assistance under
this section;
``(C) the number of minors, adults, and
dependents who--
``(i) were eligible to receive
assistance under this section; and
``(ii) were not provided with
assistance under this section solely
due to a lack of available housing; and
``(D) the type of support services provided
to each minor, adult, or dependent, assisted
under this section.
``(f) Report to Congress.--
``(1) Reporting requirement.--The Attorney General,
with the Director of the Violence Against Women Office,
shall annually prepare and submit to the Committee on
the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate a report that
contains a compilation of the information contained in
the report submitted under subsection (e).
``(2) Availability of report.--In order to
coordinate efforts to assist the victims of domestic
violence, the Attorney General, in coordination with
the Director of the Violence Against Women Office,
shall transmit a copy of the report submitted under
paragraph (1) to--
``(A) the Office of Community Planning and
Development at the United States Department of
Housing and Urban Development; and
``(B) the Office of Women's Health at the
United States Department of Health and Human
Services.
``(g) Authorization of Appropriations.--
``(1) In general.--There are authorized to be
appropriated to carry out this section $30,000,000 for
each of the fiscal years 2004 through 2008.
``(2) Limitations.--Of the amount made available to
carry out this section in any fiscal year, not more
than 3 percent may be used by the Attorney General for
salaries and administrative expenses.
``(3) Minimum amount.--
``(A) In general.--Except as provided in
subparagraph (B), unless all eligible
applications submitted by any States, units of
local government, Indian tribes, or
organizations within a State for a grant under
this section have been funded, that State,
together with the grantees within the State
(other than Indian tribes), shall be allocated
in each fiscal year, not less than 0.75 percent
of the total amount appropriated in the fiscal
year for grants pursuant to this section.
``(B) Exception.--The United States Virgin
Islands, American Samoa, Guam, and the Northern
Mariana Islands shall each be allocated not
less than 0.25 percent of the total amount
appropriated in the fiscal year for grants
pursuant to this section.''.
And the House agree to the same.
That the Senate recede from its disagreement to the
amendment of the House to the title of the bill and agree to
the same.
From the Committee on the Judiciary, for
consideration of the Senate bill and the House
amendments, and modifications committed to
conference:
F. James Sensenbrenner,
Howard Coble,
Lamar Smith,
Mark Green,
Melissa A. Hart.
For consideration of the Senate bill and House
amendments, and modifications committed to
conference:
Martin Frost.
From the Committee on Education and the
Workforce, for consideration of sec. 8 of the
Senate bill and secs. 222, 305, and 508 of the
House amendments, and modifications committed
to conference:
Pete Hoekstra,
Phil Gingrey,
Ruben Hinojosa.
From the Committee on Transportation and
Infrastructure, for consideration of sec. 303
and title IV of the House amendments, and
modifications committed to conference:
Don Young,
Tom Petri,
Jim Matheson,
Managers on the Part of the House.
Orrin Hatch,
Chuck Grassley,
Jeff Sessions,
Lindsey Graham,
Joe Biden,
Managers on the Part of the Senate.
Joint Explanatory Statement of the Committee of Conference
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the
amendments of the House to the bill (S. 151), to amend title
18, United States Code, with respect to the sexual exploitation
of children, submit the following joint statement to the House
and the Senate in explanation of the effect of the action
agreed upon by the managers and recommended in the accompanying
conference report:
The House amendment to the text of the bill struck all of
the Senate bill after the enacting clause and inserted a
substitute text.
The Senate recedes from its disagreement to the amendment
of the House with an amendment that is a substitute for the
Senate bill and the House amendment. The differences between
the Senate bill, the House amendment, and the substitute agreed
to in conference are noted below, except for clerical
corrections, conforming changes made necessary by agreements
reached by the conferees, and minor drafting and clarifying
changes.
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. Sec. 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. Sec. 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 Sec. 2A4.1(a) of the United States
Sentencing Guidelines. It further deletes Sec. 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
Sec. 2A4.1(b)(5) of the United States Sentencing Guidelines.
This section also amends 18 U.S.C. Sec. 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. Sec. 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.
Sec. 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. Sec. 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. Sec. 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. Sec. Sec. 2251A, 2252A, 2260, 2421,
2422, 2423, and 2425, as well as the sex trafficking statute,
18 U.S.C. Sec. 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.
---------------------------------------------------------------------------
\1\ 18 U.S.C. Sec. 2251A.
\2\ 18 U.S.C. Sec. 1591.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\3\ See 18 U.S.C. Sec. 3282.
\4\ See, e.g., 18 U.S.C. Sec. 3281 (no limitation period for
capital crimes); 18 U.S.C. Sec. 3293 (ten-year limitation period for
certain financial institution offenses); 18 U.S.C. Sec. 3294 (twenty-
year limitation period for certain thefts of artwork).
\5\ 18 U.S.C. Sec. 3283.
---------------------------------------------------------------------------
Sec. 203. 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. Sec. 924(c).\6\ Thus,
existing law creates a presumption that, for example, an armed
robber charged under 18 U.S.C. Sec. 924(c) cannot safely be
released before trial. This section will provide the same
presumption for crimes such as child abduction and child rape.
---------------------------------------------------------------------------
\6\ See 18 U.S.C. Sec. 3142(e).
---------------------------------------------------------------------------
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. Sec. 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 States 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. Sec. 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
sectiondirects 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.
---------------------------------------------------------------------------
\7\ 535 U.S. 234 (2002).
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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.
Sec. 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. Sec. 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\
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\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)).
---------------------------------------------------------------------------
Section 502(b) also narrows the definition of child
pornography by amending 18 U.S.C. Sec. 2256(2) to require a
simulated image to be lascivious to constitute child
pornography under the new definition in 18 U.S.C.
Sec. 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.
Sec. 2252A(c), the affirmative defense for violations of 18
U.S.C. Sec. 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.
Sec. 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. Sec. 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 reculation of
virtual child pornography might be constitutional and this
provision strengthens the affirmative defense as suggested by
the Court.
---------------------------------------------------------------------------
\9\ Free Speech Coalition, 535 U.S. at 256.
\10\ Free Speech Coalition, 535 U.S. at 259 (Thomas, J.,
concurring).
---------------------------------------------------------------------------
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. Sec. 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.
Sec. 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. Sec. 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. Sec. 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\
---------------------------------------------------------------------------
\11\ See, e.g., United States v. Thomas, 893 F. 2d 1066 (9th Cir.
1990).
---------------------------------------------------------------------------
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 Sec. Sec. 2252B and 1466A.
---------------------------------------------------------------------------
\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. Sec. 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. Sec. 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. Sec. 13032(c).
---------------------------------------------------------------------------
Section 508(b) amends 18 U.S.C. Sec. 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.
Sec. 2703(c)(2) through an administrative subpoena. To update
18 U.S.C. Sec. 3486, which covers subpoenas issued involving
the sexual exploitation or abuse of children, this provision
inserts the information specified in 18 U.S.C. Sec. 2703(c)(2)
for the list of transactional information in 18 U.S.C.
Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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.
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\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).
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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.
---------------------------------------------------------------------------
\16\ Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557 (1980).
---------------------------------------------------------------------------
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. Comniunications Decency Act of 1996
Section 603 of the conference report is a new section
that is related to the purpose of this Act. Section 603(l)(A)
and (B) amends the Communication Decency Act by making it
unlawful to use a telephone device to make or solicit
transmission of child pornography to adults andminors. Section
603(2) also making it a crime to send or display child pornography by
computer to persons under 18.
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
chance 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. Sec. 856.
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\17\ 21 U.S.C. Sec. 856.
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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. Sec. 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 itany 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. Sec. 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.
From the Committee on the Judiciary, for
consideration of the Senate bill and the House
amendments, and modifications committed to
conference:
F. James Sensenbrenner,
Howard Coble,
Lamar Smith,
Mark Green,
Melissa A. Hart.
For consideration of the Senate bill and House
amendments, and modifications committed to
conference:
Martin Frost.
From the Committee on Equation and the
Workforce, for consideration of sec. 8 of the
Senate bill and secs. 222, 305, and 508 of the
House amendments, and modifications committed
to conference:
Pete Hoekstra,
Phil Gingrey,
Ruben Hinojosa.
From the Committee on Transportation and
Infrastructure, for consideration of sec. 303
and title IV of the House amendments, and
modifications committed to conference:
Don Young,
Tom Petri,
Jim Matheson,
Managers on the Part of the House.
Orrin Hatch,
Chuck Grassley,
Jeff Sessions,
Lindsey Graham,
Joe Biden,
Managers on the Part of the Senate.