Memorandum of Law on House Bill to enact the "Child Obscenity and Pornography Prevention Act of 2002"
Memorandum of Law on House Bill to enact the
"Child Obscenity and Pornography Prevention Act of 2002"
Bruce Taylor, Chief Counsel, National Law Center for Children and Families,
former Senior Trial Attorney, DOJ Child Exploitation and Obscenity Section,
Janet LaRue, Chief Counsel, Concerned Women for America, and
Patrick Trueman, former Chief, DOJ Child Exploitation and Obscenity Section
May 8, 2002
We respectfully submit the following points and suggestions for the new child porn bill:
(page and section references are to the House Bill, H.R. 4623, introduced 4-30-02)
1. The words "appears virtually" should be deleted and replaced with "is" (p. 2, line 10; sec. 2(a)) - to read that the image "is, OR IS INDISTINGUISHABLE FROM, that of a minor...", to avoid some of the same overbroad analysis the Court in Ashcroft v. Free Speech Coalition applied to the "is, or appears to be" phrase in the CPPA of 1996.
2. Congress need not and should not provide the affirmative defense of computer-generation without use of an actual minor. (p. 2, line 19; sec. 2(c)) That would legalize the creation of realistic images of child-sex by computer, an activity Congress rightly sought to prevent in the 1996 Act. We submit that Congress should wait to act on this issue until such technology progresses into the public marketplace. Congress should continue to make the record that authentic looking, realistic child porn that is synthetic and counterfeit, but indistinguishable from real pictures of real children, is not only possible and available, but used to incite pedophiles and seduce victims and is a dangerous instrumentality and a criminal tool for the abuse of children.
3. The new pandering crime covers any image that "appears virtually indistinguishable" from that of a real child that is pandered to make others believe it is real. (p. 4, line 19; sec. 3) The new crime should clearly be limited to pandering an image that "is, or is indistinguishable from, that of a minor" and is pandered as real (Congress could add the word "marketed" on line 23, as well). This would combine the originally intended crime in 2252A to which this bill would have added the affirmative defense, yet criminalize only realistic computer-generations that are pandered. Such an offense could arguably be upheld under the Court’s ruling with the existing record and the testimony and facts Congress and the Department could now produce.
It also appears that the amendments (pp. 2-3, sec 2(b)) to the definitions in 18 U.S.C. § 2256(2), for use in § 2252A, as well as in the new "pandering" offense, is an attempt to address the overbreadth problem that the Court found with "simulated sexual conduct." The definitional amendments would have a better chance of surviving overbreadth and vagueness challenges, we submit, if the term "simulated" were more clearly and narrowly defined. "Simulated" could be narrowed further and defined to read: "A SEXUAL ACT IS SIMULATED WHEN IT GIVES THE APPEARANCE OF ACTUALLY BEING SEXUAL CONDUCT. "SIMULATED SEXUAL CONDUCT" DOES NOT INCLUDE CONDUCT THAT LEAVES TO THE IMAGINATION OR MERELY SUGGESTS, INSINUATES, HINTS, OR IMPLIES THAT SEXUAL CONDUCT MAY BE OCCURRING."
4. The activities prohibited by this new offense are already prosecutable under the existing obscenity statutes, 18 U.S.C. §§ 1460-1470, but the Sentencing Guidelines provide for child porn penalties only when the court can conclude that the obscene material involves the use of actual minors. Guideline §2G3.1(c). This could be corrected by an amendment to the Sentencing Guidelines alone and make existing obscenity laws effective for this purpose. In any event, any new obscene child porn crime should add the element that the image of a minor be obscene under the Miller-Smith-Pope test for obscenity. (p. 7, line 7; sec. 4) If Congress is to create a separate codification for an offense of obscenity that portrays a minor, such crime should cover obscene pseudo child porn and obscene actual child porn that depicts any age protected by current law, which is up to age 18. This bill would cover only younger-age depictions of "pre-pubescent&! quot; minors, which would be problematic in proving borderline ages for that category, such as children who could appear 13-14 years old. Even if Congress wanted to treat youn ger and older children differently, the law should specify an objective age, such as under 13 or under age 12, in addition to the new definition of "pre-pubescent".
Though we would recommend that this bill be amended to treat all minor children alike, as in existing child exploitation, child pornography, and sexual trafficking statutes, any new "obscene child porn" statute should include obscenity involving an image that "is, or is indistinguishable from, that of a minor under age 18". If Congress does wish to provide higher penalties for younger age or pre-pubescent child obscenity, then greater enhancements could be made in the Sentencing Guidelines for obscene child porn that depicts or portrays children under age 12 or 13 and pre-pubescent children, such as a base level 17 if the image is of a minor under 12 or 13 and a base 15 for other ages up to 18.
5. The child images database should gather photos and images from all federal and state law enforcement sources and be available to all federal agents (Postal, Customs, FBI, U.S. Marshals, Secret Service, Tribal Police, Military Police), as well as local police, ICAC task forces, and the National Center for Missing and Exploited Children. This is an essential tool; it should be available instantly for all those who need it.
Naturally, the privacy protections and use of images from the database would be governed by and handled under seal and with confidentiality pursuant to 18 U.S.C. § 3509 (d), the "Child victims’ and child witnesses’ rights" statute.
One amendment to § 3509 is proposed in this House bill (p. 22, line 1; sec. 9(b)) to enable the management and use of the database, but another sentence could be added to that amendment (p. 22, line 6) to further amend § 3509 to explicitly provide that "THE USE OF IMAGES FROM SUCH DATABASE THAT ARE, ARE INDISTINGUISHABLE FROM, OR ARE BELIEVED TO BE OF MINORS UNDER AGE 18, AND THE IDENTITY OF THE PERSONS DEPICTED AS MINORS IN THOSE IMAGES, SHALL BE TREATED AS CHILD PORNOGRAPHY AND THE IDENTITY AND CONFIDENTIALITY OF THOSE PERSONS TREATED IN THE SAME MANNER AS FOR CHILD VICTIMS AND WITNESSES UNDER AGE 18 UNDER THIS STATUTE, REGARDLESS OF THE PRESENT AGE OF THOSE PERSONS WHO WERE DEPICTED AS MINORS, WHETHER THOSE PERSONS ARE VICTIMS OR WITNESSES, OR BOTH." This would insure that the images would remain closed for law enforcement and judicial use only and allow for the child victims to testify in anonymity, even when they are now adults.
Likewise, the bill provides for an amendment (p. 22, line 10) to Federal Evidence Rule 803 that a "statement identifying an image or other record" be treated as an exception to the hearsay rule. This amendment could also be further amended to include, as a hearsay exception, an additional clause at the end of the amendment to read: "…, INCLUDING STATEMENTS OF OPINION OR TESTIMONY AS TO THE AGE OR VERIFICATION OF THE AGE OR IDENTITY OF THE PERSON DEPICTED AS A MINOR IN THE IMAGE."
6. The language of the bill also requires that the information about an image for the database "shall include at least the following...identity of victims depicted...". (p. 18, line 23; sec. 9(a)(2)) Since there are often old pictures, Internet images, and collections that are real, but the identity of the minor victims is unknown, the bill should request identity and other identifying and verifying information, not require it, so that there will be no confusion or injunction against collection of images where the identity is not known.
The bill could be changed (line 23) to the "database SHALL SEEK TO INCLUDE, WHENEVER POSSIBLE, the following information with respect to visual images produced using actual children; identity of victims depicted; SOURCE OR ORIGIN OF THE PHOTO OR IMAGE; COMMERCIAL OR PUBLIC REPRODUCTIONS OF THE IMAGE; AGE OR DATES OF APPEARANCE OR DISCOVERY OF THE IMAGE; ANY USE OF SUCH IMAGE IN THE PERPETRATION OF A SEXUAL CRIME AGAINST A CHILD; AND reference to the agent or officer....".
This could help identify a minor, as well as verify or prove that it was a real, if unknown, person, by the evidence that it appeared in old magazines, films, Internet postings, or was collected prior to the computer-generation technology available to make artificial images of that apparent realism. Furthermore, in order to create and maintain a record of instances of discovered computer-generated images that appear to be or are indistinguishable from images of actual child victims, the database should also contain those images discovered to be artificial, whether determined to be computer-generated or altered or indeterminate as to their authenticity as showing actual minor children.
Therefore, subsection 9(a)(2) of the bill could include an additional sentence to read (p. 19, line 5): "SIMILAR INFORMATION AS TO IMAGES THAT ARE INDETERMINATE AS WHETHER THEY WERE PRODUCED USING ACTUAL CHILDREN, AS WELL AS IMAGES AND INFORMATION ABOUT IMAGES THAT ARE KNOWN OR BELIEVED TO HAVE BEEN GENERATED OR ALTERED BY COMPUTER TECHNOLOGIES OR PHOTOGRAPHIC PROCESS, SHALL ALSO BE INCLUDED IN THE DATABASE, IN ORDER TO FACILITATE THE IDENTIFICATION OF THE USE OF SUCH TECHNOLOGIES AND PROCESSES TO CREATE OR DISSEMINATE SUCH ARTIFICIAL FORMS OF CHILD PORNOGRAPHY THAT ARE OR ARE INDISTINGUISHABLE FROM THAT OF ACTUAL MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT AND TO CREATE A RECORD OF THE USE OF SUCH MATERIALS IN THE VICTIMIZATION OF CHILDREN OR THE INCITEMENT OF PEDOPHILES TO MOLEST OR EXPLOIT CHILDREN." In this way, the database could serve a dual purpose of helping to identify actual child pornography, as well as to make a record which would chronicle the abu! se of computer imaging technology to create synthetic or counterfeit child pornography and its dissemination among pedophiles as a sexual stimulant and a criminal tool for the seduction of child victims.
FURTHER EXPLANATION OF THE ABOVE ISSUES AND SUGGESTIONS:
Re: "Child Obscenity and Pornography Prevention Act of 2002"
1. The bill phrases the new definition in a way that would allow the Court to apply some of the same expansive assumption about the word "appears" and permits some interpretation of overbreadth in using the "appears virtually indistinguishable" (as if it could mean looks like it is almost indistinguishable) and Congress should just say that it must be an "image that is, or is indistinguishable, from that of a minor engaging...". We suggested such a Congressionally intended narrowing construction in our amicus brief to the Court for an authoritative narrowing construction by the Supreme Court, but the Court did not accept that function and a bill to codify this issue should be as specific and narrow as possible to avoid another hypothetically broad interpretation by the Court.
Therefore, the bill should be amended to read, when it adds the new definition in section (a) of the bill on page 2 (for § 2256(8)(B) of the existing code): "(B) such visual depiction is a computer image or computer-generated image that is, or
appears virtually IS indistinguishable from, that of a minor engaging in sexually explicit conduct; or...".
2. The affirmative defense on page 3 for any violation of § 2252A (except for "real" child porn that is of an actual minor as defined in 2256(8)(A) or (C)) would effectively "legalize" synthetic or counterfeit child pornography that uses no child, even when it is so realistic that it is indistinguishable from a photo of a real child being abused. The Court found that the record did not support a finding that such technical capacity was in use or available to the public or that such realistic, but computer-generated fake child porn was thwarting child porn cases under the old statute, § 2252. The original concern of Congress in passing § 2252A in 1996 was to forestall the creation of an industry where pornographers would produce realistic images of child sex using computer imaging alone. That concern would be a legalized reality, with an economic incentive worthy of spawning such an industry, if Congress were to admit that it w! ere a valid defense that the image was computer generated without children.
It is not the pedophiles whom we would have to fear going into this business, they would be the target customer audience. It would be the "adult" pornography syndicate operators who could seize the opportunity and could marshal the resources to obtain the necessary computer hardware and software to recreate images of children that are as realistic or better than those of the adult computer-generated "people" in the film Final Fantasy (see www.finalfantasy.com for how that film/game’s image technicians and artists created the human figures that appear to be so real). If the porn syndicates could legally sell counterfeit child porn that was created by computer, with the excuse of giving pedophiles their child porn without using real children in the production process, then imagine the wrath pedophiles could inflict on real children by being incited by such realistic images and using ! those images to seduce and "fool" children into becoming victims of imitating the sex depicted in such computer-generated synthetic still photos and video streams. We submit that there is good reason for being concerned about codifying a permanent, legal defense to those who could then create an industry of producing and openly selling computerized child porn to the pedophile market. The hard-core "adult" porn syndicates could also flood the market with computerized child porn in order to lead law enforcement on a chase to determine whether it is real or not and divert attention and resources from adult obscenity and actual child pornography investigations. Such a criminal tool does not deserve to go public and Congress should have no part in making it "legal" and enabling that which Congress sought to protect children from, even though you can’t stop it this year.
For our part, we are adamantly opposed to legalizing such traffic, for the reasons stated in our amicus brief filed in Ashcroft v. Free Speech Coalition and because we agree with the concerns of Congress from 1996 that computer and photo image technologies can and soon will be commercially and publicly available to create artificial, but authentically realistic, counterfeit images that appear to be of real children engaging in sexual conduct that is indistinguishable from photographic images of real children who did engage in sexual conduct. We also agree with the Congressional finding and the recognition of the Supreme Court in Osborne v. Ohio in 1990 that pedophiles are incited by child porn to molest children and use child porn to seduce their child victims. If the pedophiles and minors can’t tell the difference, they will react the same way to an image they think is real, even if it was made by a computer instead of! a camera. The act of producing and trafficking in such counterfeit child pornography should be considered a form of criminal conduct and consumer fraud of the most dangerous sort and should not be considered expression entitled to the protection of the First Amendment.
3. We agree with the sponsors and with the Attorney General that the new "Pandering and solicitation" offense (§ 2252B) in section 3 of the bill on pp. 4-6 is a worthy effort at defining a valid criminal law. We submit, however, that Congress should combine the concept of child pornography that "is, or is indistinguishable from, that of a minor..." with this new § 2252B crime, so that the offense would be knowingly providing or selling an image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct in connection with knowing acts of promoting or pandering such images as "real" with intent to cause others to believe it really is an image of an actual minor person engaging in the sexual conduct.
Not only could Congress make this change and fulfill the law’s intent, we think it should be done—it would be more constitutionally defensible and just as effective in stopping fraudulent child pornographers from inciting countless child molestations without prematurely legalizing such an industry. The present language in the bill may not be sufficiently specific as to what kind of image the offender is prohibited from selling with intent to cause such belief. If a person sold a classic painting or scenes from Traffic with such intent and the buyer didn’t know he was the subject of consumer fraud until he received the obviously fake product, could the statute, under the Court’s overly broad analysis, facially apply to the seller’s conduct, even thought the images themselves wouldn’t fool anyone into thinking they were of real children having sex? (Such fakes would not be indistinguishable from real. A painting appears to be a painting, not a! photo of a real minor; and the movie appeared to be a minor suggesting sex or a body double performing sex, both non-criminal under § 2252A as Congressionally intended).
If the crime were tightened to forbid offenders from knowingly selling real or realistic images AND pandering them as real, then the offense would prohibit a type of fraudulent commercial activity (as opposed to "speech") that Congress and the Court could consider a form of "conduct" that is not "expression" entitled to First Amendment protection.
Another suggestion to improve this new offense would be to better clarify the use of the term "simulated" in the definition section of 18 U.S.C. § 2256(2) (contained in sec. 2(b) of the bill on pp. 2-3). The federal child pornography statutes prior to the enactment of the CPPA of 1996 already banned depictions of simulated, as well as actual sexual conduct, by real minor children. In Ashcroft v. Free Speech Coalition, the Supreme Court held that "simulated sexual conduct" as applied to "virtual" child pornography is overbroad. The Court reasoned that non-obscene "simulated sexual conduct" by an adult actor depicting a child could lead to the prosecution of movies such as American Beauty, Traffic, Titanic, and Lolita. As a result, the Court held that the CPPA violated the First Amendment because it criminalized non-obscene "virtual" images of a child engaged in "simulated" se! xual c onduct.
The Court, unfortunately, did not construe and limit the reach of the CPPA within the mandate of Jenkins v. Georgia, 418 U.S. 153, 161 (1974). In Jenkins, the Court reversed the obscenity conviction of a theater owner for exhibiting the movie Carnal Knowledge. The Court held that the movie could not be found obscene, because it did not include patently offensive depictions of sexual conduct and, in fact, did not include any legally cognizable "depiction" of any sexual conduct. The Court stated that, at most, some form of sexual activity was implied and though it was "understood to be taking place, the camera does not focus on the bodies of the actors at such times." The Court held that, as a matter of law, no visual material could be held to be obscene unless it included patently offensive "depictions" of the hard-core sex acts.
As noted, it appears that sec. 2 (b) of the bill attempts to address the overbreadth problem the Court found with "simulated sexual conduct." The language in the bill does not define "simulated", but qualifies it as "lascivious"— i.e. "lascivious simulated sexual intercourse," "lascivious simulated bestiality; masturbation; or sadistic or masochistic abuse or simulated lascivious exhibition of the genitals or pubic area of any person;...". It is likely that this new language will face extensive challenges for overbreadth and vagueness.
It could better assist the courts in interpreting and upholding the definitions against challenges on overbreadth and vagueness grounds if the term "simulated" were narrowly defined. For example, California Penal Code Section 311.4 (d)(1) criminalizes depictions of minors engaged in "sexual conduct" that is "actual or simulated." The section defines simulated as follows: "An act is simulated when it gives the appearance of being sexual conduct."
"Simulated" could be defined and narrowed further such as: "A SEXUAL ACT IS SIMULATED WHEN IT GIVES THE APPEARANCE OF ACTUALLY BEING SEXUAL CONDUCT. "SIMULATED SEXUAL CONDUCT" DOES NOT INCLUDE CONDUCT THAT LEAVES TO THE IMAGINATION OR MERELY SUGGESTS, INSINUATES, HINTS, OR IMPLIES THAT SEXUAL CONDUCT MAY BE OCCURRING."
4. The new offense of "Obscene visual depictions of young children" (§ 1466A) doesn’t include the element of obscenity, but simply forbids traffic in images that are or are "virtually" indistinguishable from pre-pubescent children engaging in sex. This offense is "virtually indistinguishable" from the offense defined in the 1996 CPPA for § 2252A—producing, distributing, receiving, or possessing child porn that "is, or appears to be, a child".... that the Court said was unconstitutional in light of the record and as argued by the Department of Justice. This new section could better prohibit acts of knowingly producing or distributing an obscene image that is or is indistinguishable from that of a minor engaging in sexually explicit conduct and such a statute should be limited to obscenity depicting minors of any age protected by existing federal child sexual exploitation laws (§§ 2251, 225! 2, 225 2A, 2256). This new law, if Congress enacts it, should cover obscenity portraying any minors under age 18, though greater penalties could be assessed for obscenity that depicts minors of any age and even greater enhancements for depictions of pre-pubescent children and minors under age 12 or 13.
The obscenity statutes have a maximum of 5 years prison on first offense, thought the Guidelines provide for much less. This new child-obscenity offense could have the same maximum terms as for child porn, with the Sentencing Guidelines amended to dictate a first offense jail term in the level 15 range for obscenity that depicts minors up to age 18 and maybe a minimum term in the level 17 range if the obscenity depicts minors under 12 or 13 or who are "pre-pubescent". This would be consistent with the Court’s opinion that existing obscenity laws could reach materials that depict apparent minors performing ultimate sex acts or lewd-lascivious genital exhibitions in an obscene film or image, whether those apparent minors are real minors or youthful looking adults. The obscenity is the same, but the penalties can be greater.
Therefore, we submit that the bill should not legalize virtual child porn and the proposed affirmative defense on page 3 of the bill should be deleted. Instead, offenses under § 2252A(c) that don’t involve real children should combine the element that the image "is, or is indistinguishable from, that of a minor" with the "pandering" crime, to forbid traffic in realistic images that are pandered to be actual child porn and then re-defining the "child obscenity" crime to apply to obscene materials portraying any minor.
5. The creation of a secure database for identifying child pornography produced with actual children would be a much-needed tool for law enforcement and the courts. As prosecutors and law enforcement advocates, we have always wanted a joint collection of known images that were collected from FBI, Postal Inspection Service, Customs Service, and local police and make those images available for comparison to our case images. Each federal agency and local police departments have kept their own archives of child porn, which could now be assimilated in a federal repository where all agencies could contribute and have access, with security and privacy protections applicable to all such images. In the past, as then DOJ-CEOS attorney Bob Flores was able to do in U.S. v. Kimbrough, 69 F.3d 723 (5th Cir. 1995), and AUSA Arnie Huftalen and then DOJ-CEOS attorney Bruce Taylor did in U.S. v. Bateman in New Hampshire (and as many federa! l and state prosecutors have done in past cases), we had to ask our case agents to circulate some of our case pictures to Postal Inspectors, FBI Special Agents, Customs agents, Secret Service Agents, Deputy U.S. Marshals, or local police detectives, in hopes that someone would recognize our images from an old magazine, film, or child porn collection seized from a pedophile—to have further proof that our images were real and were produced out of State or beyond the U.S. and transported in interstate or foreign commerce to reach our federal District. In fact, since the Court’s Free Speech decision, local police have been asking where to access any available databases in order to prove that pending charges and investigations involve "real" children being abused. CWA’s Janet LaRue has received such inquiries by both phone and email and the only present method of verifying such images is by manually contacting the various agents and individual local and fed! eral a gencies in hopes of recognizing a "match".
It is true, under existing § 2252, that a jury can conclude from the photographs or images alone that they are visual depictions of actual minor persons under age 18. A jury can reach such a conclusion beyond reasonable doubt, if the image is conducive to such conclusion. Such legally permissible inferences can and will be relied on and utilized to support present and future convictions under §§ 2252 and 2252A, but prosecutors will often seek to assist the jury with medical testimony from doctors who are pediatricians or medical examiners from a coroner’s office to give expert opinions as to the age of the children depicted and prosecutors will try to offer or would like additional evidence of the reality of the images by being able to have testimony from an agent/police investigator that the image is of a known child or has appeared in an old film or magazine as evidence that it really is of a real child and must have been t! ranspo rted or transmitted across state lines or through facilities of commerce.
The database of collected images from past child porn and child abuse cases could also be digitized, like fingerprint, DNA, and NCIC databases, for comparison with newly discovered images to search for a match. The new child porn database should, regardless of which agency or organization maintains it, collect from all federal and state law enforcement sources and be made available to all federal investigative agencies (FBI, Postal, Customs, Secret Service, Marshals, Tribal Police, and Military Police), plus the ICAC-Internet Crimes Against Children task forces, Innocent Images, local police agencies and state and local sexually exploited child units, and the National Center for Missing and Exploited Children.
The confidentiality of the images and identities of the child victims would be maintained and the use of the database in court would be governed by and subject to the privacy protection provisions of the "Child victims’ and child witnesses’ rights" guaranteed in 18 U.S.C. § 3509.
6. There is an amendment to the bill that can be suggested on the database point, however. In section 9 of the bill, page 18, subsection (a)(2), the bill requires that the database "shall include at least the following information" and names "identity of victims depicted", as well as the case and agent identities. So that there is no confusion as to what to do with an image where they know it is of a child (from an old magazine, film, photo collection, Internet, etc.), but they don’t know whom the child is, the bill should request certain information, but not demand it. (This could prevent a court from enjoining the Government from collecting images where the required identity of the minor is unknown.)
The language could be amended to read that the "database SHALL SEEK TO INCLUDE, WHENEVER POSSIBLE, the following information with respect to visual images produced using actual children: identity of victims depicted; SOURCE OR ORIGIN OF THE PHOTO OR IMAGE; COMMERCIAL OR PUBLIC REPRODUCTIONS OF THE IMAGE; AGE OR DATES OF APPEARANCE OR DISCOVERY OF THE IMAGE; reference to the agent or officer with knowledge of the image...."
Finally, we can keep in mind that the Supreme Court and the Ninth Circuit made their decisions under the assumption that § 2252A could apply to a broad category of images, including Renaissance paintings and youthful looking adults pretending to be minors and minors pretending or suggesting to engage in sex (even when not "depicting" the sex, like in Traffic or Romeo and Juliet). We know this was not the intent of Congress and is the exact opposite of the intended reach of the phrase in the CPPA that child pornography would consist only of an image that "is, or appears to be, of a minor person engaging in sexually explicit conduct" when it does just that—appears to be of a real minor person under 18 actually engaging in the felonious child abuse activity. That type of felony abuse does not take place on the set of Hollywood movies and the hard-core porn industry better not use minors to do sex scenes or they would vi! olate the old statute, as well. However, the Court thought that was what this statute and this case was about and struck the statute on that account. If the statute HAD applied to suggested, off-camera sex by teenage actresses or adults pretending to be a child character or even a painting, then the CPPA would have been unconstitutionally overbroad. The CPPA was not written or intended to be so vague or overbroad and it is unfortunate that the Court would not authoritatively construe the Act within permissible constitutional bounds. This was unlike the other Circuit Courts of Appeals that upheld § 2252A with a narrower interpretation, finding the statute applicable and construing it to apply only to realistic images that appear to be of real minors and not applicable to obvious fakes or adult body-doubles, like Hollywood movies with an adult body-double in the nude scenes or even porn-films like a Lolita with an over-18 performing the sex scenes.
Once the Supreme Court Justices thought the CPPA could apply to paintings and Hollywood films that everyone knows are not of real children being abused, they thought the statute was overbroad—and they would have been correct if the Act were applicable to such obvious adult or fake materials. However much Congress tried to limit the CPPA to images that are, or appear to be, of real minors—to images that were indistinguishable from real minors and could not be distinguished from the very images that §§ 2251 and 2252 prohibit, nevertheless, the Court rejected that attempt and felt compelled to consider the statute as applicable to the broader categories of protected speech. Being in the present situation, however, requires Congress and us to seek other ways to protect minors from sexual exploitation and from the harm that would be inflicted on them if computers generate a marketable form of counterfeit child porn to replace the real image! s that pedophiles risk their lives to obtain.
The Court found that the record was insufficient to justify such an assumptively overbroad statute, in absence of proof that such realistic images were being produced by computer technology alone and that such images were frustrating proof or jury conclusions as to the authenticity of presently prosecuted child porn images. The Court concluded that much more proof would be needed to justify "banning" paintings and Traffic-like scenes, as well as realistic synthetic or counterfeit computer-generated images. Much less proof may have been persuasive for a statute that was interpreted and understood to be limited to only realistically indistinguishable images. Congress found that such proof was in existence in 1996 and that computer image technology was or would soon be available to create images that are or appear to be of real minors and that such technology would be commercially or publicly available within a short time, so! that& nbsp;existing law needed to be updated before vast numbers of child victims were seduced or exploited.
If the Court understood or accepted that it was evaluating the justifications needed for the more narrow interpretation of the law, like that proposed in the present bill, then the Court may have upheld the statute this time.
In light of the ruling, however, we must and can resort to using the old child porn laws, §§ 2252 and 2252A for real child images (or obscenity laws when the age or authenticity of the child cannot be determined), but it is unwise, we submit, to "legalize" the artificial creation of realistic synthetic-counterfeit child porn and invite the porn industry to invest in the technology necessary to create such realistically indistinguishable child porn materials at this time. Congress tried to forestall such an avalanche of dangerous child porn imagery of the sexualization of children and we don’t think the Members should capitulate and open the door to that which they wisely sought to prohibit. Now that Final Fantasy has proven that computers can create human images that are realistic enough to look real, especially if one were to scan and upload such an image onto the Internet and make a second-generation copy that could not be dis! tingui shed from a copy of an actual photograph of a real child, it is reasonable to anticipate that such technology will be more widely available and improved in the near future. Congress should wait, law enforcement should continue to gather the evidence, and we all should build the record to justify the original intent of the CPPA and then seek to return to a criminalization of the act of knowingly making, trafficking, and possessing images that are or appear to be real child porn images that are indistinguishable from images of actual children being abused. It’s too early to quit on that score, but this bill could be a great vehicle to start the process of closing the loopholes and allowing law enforcement to enforce existing law and use obscenity laws to prosecute pseudo-child porn or child-theme sexual conduct that depicts or purports to depict children engaging in sexual conduct in an obscene way under the "Miller-Smith-Pope" test.
We are honored to assist the Congress and the Department with the process of enacting a fair, if limited, first step in this direction. The Attorney General and the sponsors’ goals are to protect our children and grandchildren from this victimization and they deserve our assistance and best advice to support this effort.
Bruce Taylor, President & Chief Counsel Janet M. LaRue, Chief Counsel
National Law Center for Children and Families Concerned Women for America
(703) 691-4626 (202) 488-7000
Patrick A. Trueman
Attorney at Law