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A BILL

To prevent trafficking in child pornography and obscenity, to proscribe pandering and solicitation relating to visual depictions of minors engaging in sexually explicit conduct, to prevent the use of child pornography and obscenity to facilitate crimes against children, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SEC. 1. SHORT TITLE.

This Act may be cited as the "Child Obscenity and Pornography Prevention Act of 2002".

SEC. 2. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY

(a) Section 2256(8)(B) of title 18, United States Code, is amended to read as follows:

"(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from, that of a minor engaging in sexually explicit conduct; or".

(b) Section 2256(2) of title 18, United States Code, is amended to read as follows:

"(2) (A) Except as provided in subparagraph (B), ‘sexually explicit conduct’ means actual or simulated –

"(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

"(ii) bestiality;

"(iii) masturbation;

"(iv) sadistic or masochistic abuse; or

"(v) lascivious exhibition of the genitals or pubic area of any person;

"(B) For purposes of subsection 8(B) of this section, "sexually explicit conduct" means –

"(i) actual 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) actual or lascivious simulated –

"(I) bestiality;

"(II) masturbation; or

"(III) sadistic or masochistic abuse; or

"(iii) actual or simulated lascivious exhibition of the genitals or pubic area of any person;".

(c) Section 2252A(c) of title 18, United States Code, is amended to read as follows:

"(c) (1) Except as provided in paragraph (2), it shall be an affirmative defense to a charge of violating this section that the alleged offense did not involve child pornography produced using a minor engaging in sexually explicit conduct or an attempt or conspiracy to commit an offense involving such child pornography.

"(2) A violation of, or an attempt or conspiracy to violate, this section which involves child pornography as defined in section 2256(8)(A) or (C) shall be punishable without regard to the affirmative defense set forth in paragraph (1).".

SEC. 3. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY

(a) Section 2256(8) of title 18, United States Code, is amended –

(1) by inserting "or" at the end of subparagraph (B);

(2) in subparagraph (C), by striking "or" at the end and inserting "and"; and

(3) by striking subparagraph (D).

(b) Chapter 110 of title 18, United States Code, is amended –

(1) by inserting after section 2252A the following:

"§ 2252B. Pandering and solicitation

"(a) Whoever, in a circumstance described in subsection (d), offers, agrees, attempts, or conspires to provide or sell a visual depiction to another, and who in connection therewith knowingly advertises, promotes, presents, or describes the visual depiction with the intent to cause any person to believe that the material is, or contains, a visual depiction of a minor engaging in sexually explicit conduct shall be subject to the penalties set forth in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

"(b) Whoever, in a circumstance described in subsection (d), offers, agrees, attempts, or conspires to receive or purchase from another a visual depiction that he believes to be, or to contain, a visual depiction of a minor engaging in sexually explicit conduct shall be subject to the penalties set forth in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

"(c) It is not a required element of any offense under this section that any person actually provide, sell, receive, purchase, possess, or produce any visual depiction.

"(d) The circumstance referred to in subsection (a) and (b) is that –

"(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;

"(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;

"(3) any person 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.";

(2) in the analysis for the chapter, by inserting after the item relating to section 2252A the following:

"2252B. Pandering and solicitation.".

SEC. 4. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN

(a) Chapter 71 of title 18, United States Code, is amended –

(1) by inserting after section 1466 the following:

"1466A. Obscene visual depictions of young children

"(a) Whoever, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute a visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in sexually explicit conduct, or attempts or conspires to do so, shall be subject to the penalties set forth in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

"(b) Whoever, in a circumstance described in subsection (d), knowingly possesses a visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in sexually explicit conduct, or attempts or conspires to do so, shall be subject to the penalties set forth in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

"(c) For purposes of this section –

"(1) ‘visual depiction’ includes undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means;

"(2) ‘pre-pubescent child’ means that the child, as depicted, does not exhibit significant pubescent physical or sexual maturation. Factors that may be considered in determining significant pubescent physical maturation include body habitus and musculature, height and weight proportion, degree of hair distribution over the body, extremity proportion with respect to the torso, and dentition. Factors that may be considered in determining significant pubescent sexual maturation include breast development, presence of axillary hair, pubic hair distribution, and visible growth of the sexual organs; and

"(3) ‘sexually explicit conduct’ has the meaning set forth in section 2256(2).

"(d) The circumstance referred to in subsections (a) and (b) is that –

"(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;

"(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;

"(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense;

"(4) any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or

"(5) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.";

"(e) In a case under subsection (b), it is an affirmative defense that the defendant –

"(1) possessed less than three such images; and

"(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof –

"(A) took reasonable steps to destroy each such image; or

"(B) reported the matter to a law enforcement agency and afforded that agency access to each such image."; and

(2) in the analysis for the chapter, by inserting after the item relating to section 1466 the following:

"1466A. Obscene visual depictions of young children.".

(b) (1) Except as provided in paragraph (2), the applicable category of offense to be used in determining the sentencing range referred to in section 3553(a)(4) of title 18, United States Code, with respect to any person convicted under section 1466A of such title, shall be the category of offenses described in §2G2.2 of the Sentencing Guidelines.

(2) The Sentencing Commission may promulgate guidelines specifically governing offenses under section 1466A of title 18, United States Code, provided that such guidelines shall not result in sentencing ranges that are lower than those that would have applied under paragraph (1).

SEC. 5. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES

AGAINST MINORS

Chapter 71 of title 18, United States Code, is amended –

(a) by inserting at the end the following:

"1471. Use of obscene material or child pornography to facilitate offenses against minors

"(a) Whoever, in any circumstance described in subsection (c), knowingly –

"(1) provides or shows to a person below the age of 16 years any obscene matter or child pornography, or any visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in sexually explicit conduct; or

"(2) provides any obscene matter or child pornography, or any visual depiction that is, or is virtually indistinguishable from, that of a pre-pubescent child engaging in sexually explicit conduct, or any other material assistance to any person in connection with any conduct, or any attempt, incitement, solicitation, or conspiracy to engage in any conduct, that involves a minor and that violates chapter 109A, 110, or 117, or that would violate chapter 109A if the conduct occurred in the special maritime and territorial jurisdiction of the United States,

shall be subject to the penalties set forth in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

"(b) For purposes of this section –

(1) ‘child pornography’ has the meaning set forth in section 2256(8);

(2) ‘visual depiction’ has the meaning set forth in section 1466A(c)(1);

(3) ‘pre-pubescent child’ has the meaning set forth in section 1466A(c)(2); and

(4) ‘sexually explicit conduct’ has the meaning set forth in section 2256(2).

"(c) The circumstance referred to in subsection (a) is that –

"(1) any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense;

"(2) any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction or obscene matter by the mail, or in interstate or foreign commerce by any means, including by computer;

"(3) any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense;

"(4) any visual depiction or obscene matter involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or

"(5) the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.";

(b) in the analysis for the chapter, by inserting at the end the following:

"1471. Use of obscene material or child pornography to facilitate offenses against minors.".

SEC. 6. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR

DISTRIBUTION IN THE UNITED STATES

Section 2251 is amended –

(a) by striking "subsection (d)" each place it appears in subsections (a), (b), and (c) and inserting "subsection (e)";

(b) by redesignating subsections (c) and (d), respectively, as subsections (d) and (e); and

(c) by inserting after subsection (b) a new subsection (c) as follows:

"(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its possessions and Territories, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e).

"(2) The circumstance referred to in paragraph (1) is that –

"(A) the person intends such visual depiction to be transported to the United States, its possessions, or territories, by any means including by computer or mail;

"(B) the person transports such visual depiction to, or otherwise makes it available within, the United States, its possessions, or territories, by any means including by computer or mail.".

SEC. 7. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS

Sections 2251(d), 2252(b), and 2252A(b) of title 18, United States Code, are each amended by inserting "chapter 71," immediately before each occurrence of "chapter 109A,".

SEC. 8. 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) in subsection (d) –

(A) by striking the heading and inserting the following new heading: "Voluntary provision of information by service providers";

(B) by designating the current text of subsection (d) as paragraph (1); and

(C) by adding at the end of subsection (d) the following new paragraph:

"(2) A provider of electronic communication services or remote computing services described in subsection (b)(1), which reasonably believes that it has obtained knowledge of facts and circumstances indicating that a violation of section 2251, 2251A, 2252, 2252A, 2252B, or 2260 of Title 18, involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title, may have occurred or will occur, may make a report of such facts or circumstances to the Cyper Tip Line at the National Center for Missing and Exploited Children, which shall forward that report to the law enforcement agency or agencies previously designated by the Attorney General under subsection (b)(2). Except as provided in subsection (b)(1), the Federal Government may not require the making of any such report."; and

(4) 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.".

(b) Section 2702 of Title 18, United States Code is amended–

(1) in subsection (b) –

(A) in paragraph (6)–

(i) by inserting "or" at the end of subparagraph (A)(ii);

(ii) by striking subparagraph (B); and

(iii) by redesignating subparagraph (C) as subparagraph (B);

(B) by redesignating paragraph (6) as paragraph (7);

(C) by striking "or" at the end of paragraph (5); and

(D) by inserting after paragraph (5) the following new paragraph:

"(6) to the National Center for Missing and Exploited Children,

in connection with a report submitted thereto under section 227

of the Victims of Child Abuse Act of 1990 [42 U.S.C. 13032]; or"; and

(2) in subsection (c) –

(A) by striking "or" at the end of paragraph (4);

(B) by redesignating paragraph (5) as paragraph (6); and

(C) by adding after paragraph (4) the following new paragraph:

"(5) to the National Center for Missing and Exploited Children,

in connection with a report submitted thereto under section 227

of the Victims of Child Abuse Act of 1990 [42 U.S.C. 13032]; or".

SEC. 9. ESTABLISHMENT OF SECURE DATABASE FOR IDENTIFYING CHILD

PORNOGRAPHY PRODUCED WITH ACTUAL CHILDREN

(a) ESTABLISHMENT –

(1) IN GENERAL – The Attorney General shall establish, and supervise the development and operation of, a comprehensive computerized database (hereafter referred to as the "child pornography identification database") to facilitate the identification of child pornography produced with actual children and to facilitate the identification of perpetrators.

(2) DATABASE INFORMATION ABOUT CHILD PORNOGRAPHY – The child pornography identification database shall include at least the following information with respect to visual images produced using actual children: identity of victims depicted; reference to the agent or officer with knowledge of the image, together with the case name and file number, so that testimony can be offered identifying the image; and other information necessary to meet the objectives specified above.

(3) SUBMISSION OF INFORMATION FOR THE DATABASE – Federal law enforcement agencies shall promptly provide to the Attorney General information they obtain about identified victims of child pornography, including images known or believed to have been produced using real children, and a point-of-contact for further information with respect to particular images. Any state or local law enforcement agency or task force receiving federal grants under the Victims of Child Abuse Act of 1990 shall also provide such information to the Attorney General. State and local agencies not receiving federal funds are encouraged to contribute such information on a voluntary basis.

(4) AVAILABILITY OF INFORMATION IN THE DATABASE – Information contained in the child pornography identification database may be made accessible only to the following persons under such terms and conditions as the Attorney General may establish consistent with paragraph (5):

(A) Federal, state, and local law enforcement officers and investigators working on child pornography cases or cases involving child abuse or suspected child abuse; and

(B) other agencies, entities, and individuals as to whom the Attorney General determines there is good cause to permit access.

(5) PRIVACY PROTECTIONS – The Attorney General shall, by regulation or otherwise, establish terms and conditions for the establishment and operation of, and access to, the database, which shall at a minimum ensure that –

(A) access to the child pornography identification database is limited to authorized law enforcement personnel working on child pornography cases or cases involving child abuse or suspected child abuse;

(B) the database is properly secured to prevent unauthorized entry into, or access to, the information contained in the database; and

(C) any information lawfully obtained from the database will be protected from disclosure except as may be necessary for the investigation or prosecution of any offender or as may be authorized by the Attorney General.

(6) COOPERATION WITH INTERNATIONAL LAW ENFORCEMENT – Nothing in this section shall prohibit the Attorney General from contributing data to an international child pornography identification database on a reciprocal basis, provided that such international database has safeguards as described in paragraph (5).

(7) PENALTIES FOR UNAUTHORIZED ACCESS AND DISCLOSURE – Section 1030(a)(1) of title 18, United States Code, is amended by inserting after "Atomic Energy Act of 1954 or any restricted information that is included in the database required by section 2 of the Visa Entry Reform Act of 2001" the following: "or any restricted information that is included in the database required by section 9 of the Child Obscenity and Pornography Prevention Act of 2002".

(8) AUTHORIZATION OF APPROPRIATIONS – There are authorized to be appropriated to the Department of Justice such sums as may be necessary to carry out this section.

(b) Section 3509 of title 18, United States Code, is amended by inserting at the end of subsection (d)(4) the following sentence:

"This subsection does not prohibit contribution of information, or authorized access, to the child pornography identification database established by section 9 of the Child Obscenity and Pornography Prevention Act of 2002 or the use, in conformity with such section, of information lawfully obtained from such database."

(c) Rule 803 of the Federal Rules of Evidence is amended by adding at the end the following new paragraph:

"(24) A statement identifying an image or other record obtained from the child pornography identification database established by section 9 of the Child Obscenity and Pornography Prevention Act of 2002, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(4)."

SEC. 10. SEVERABILITY

If any provision of this Act, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.