Bill Name: Child Obscenity and Pornography Prevention Act of 2006
Bill Description: SECTION 1. SHORT TITLE.

This Act may be cited as the `Child Obscenity and Pornography Prevention Act of 2003'.

SEC. 2. FINDINGS.

Congress finds the following:

(1) Obscenity and child pornography are not entitled to protection under the First Amendment under Miller v. California, 413 U.S. 15 (1973) (obscenity), or New York v. Ferber, 458 U.S. 747 (1982) (child pornography) and thus may be prohibited.

(2) The Government has a compelling state interest in protecting children from those who sexually exploit them, including both child molesters and child pornographers. `The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance,' New York v. Ferber, 458 U.S. 747, 757 (1982), and this interest extends to stamping out the vice of child pornography at all levels in the distribution chain. Osborne v. Ohio, 495 U.S. 103, 110 (1990).

(3) The Government thus has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective. `The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.' Ferber, 458 U.S. at 760.

(4) In 1982, when the Supreme Court decided Ferber, the technology did not exist to:

(A) computer generate depictions of children that are indistinguishable from depictions of real children;

(B) use parts of images of real children to create a composite image that is unidentifiable as a particular child and in a way that prevents even an expert from concluding that parts of images of real children were used; or

(C) disguise pictures of real children being abused by making the image look computer-generated.

(5) Evidence submitted to the Congress, including from the National Center for Missing and Exploited Children, demonstrates that technology already exists to disguise depictions of real children to make them unidentifiable and to make depictions of real children appear computer-generated. The technology will soon exist, if it does not already, to computer generate realistic images of children.

(6) The vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and/or related media.

(7) There is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children. Nevertheless, technological advances since Ferber have led many criminal defendants to suggest that the images of child pornography they possess are not those of real children, insisting that the government prove beyond a reasonable doubt that the images are not computer-generated. Such challenges increased significantly after the decision in Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002).

(8) Child pornography circulating on the Internet has, by definition, been digitally uploaded or scanned into computers and has been transferred over the Internet, often in different file formats, from trafficker to trafficker. An image seized from a collector of child pornography is rarely a first-generation product, and the retransmission of images can alter the image so as to make it difficult for even an expert conclusively to opine that a particular image depicts a real child. If the original image has been scanned from a paper version into a digital format, this task can be even harder since proper forensic assessment may depend on the quality of the image scanned and the tools used to scan it.

(9) The impact of the Free Speech Coalition decision on the Government's ability to prosecute child pornography offenders is already evident. The Ninth Circuit has seen a significant adverse effect on prosecutions since the 1999 Ninth Circuit Court of Appeals decision in Free Speech Coalition. After that decision, prosecutions generally have been brought in the Ninth Circuit only in the most clear-cut cases in which the government can specifically identify the child in the depiction or otherwise identify the origin of the image. This is a fraction of meritorious child pornography cases. The National Center for Missing and Exploited Children testified that, in light of the Supreme Court's affirmation of the Ninth Circuit decision, prosecutors in various parts of the country have expressed concern about the continued viability of previously indicted cases as well as declined potentially meritorious prosecutions.

(10) Since the Supreme Court's decision in Free Speech Coalition, defendants in child pornography cases have almost universally raised the contention that the images in question could be virtual, thereby requiring the government, in nearly every child pornography prosecution, to find proof that the child is real. Some of these defense efforts have already been successful. In addition, the number of prosecutions being brought has been significantly and adversely affected as the resources required to be dedicated to each child pornography case now are significantly higher than ever before.

(11) Leading experts agree that, to the extent that the technology exists to computer generate realistic images of child pornography, the cost in terms of time, money, and expertise is--and for the foreseeable future will remain--prohibitively expensive. As a result, for the foreseeable future, it will be more cost-effective to produce child pornography using real children. It will not, however, be difficult or expensive to use readily available technology to disguise those depictions of real children to make them unidentifiable or to make them appear computer-generated.

(12) Child pornography results from the abuse of real children by sex offenders; the production of child pornography is a byproduct of, and not the primary reason for, the sexual abuse of children. There is no evidence that the future development of easy and inexpensive means of computer generating realistic images of children would stop or even reduce the sexual abuse of real children or the practice of visually recording that abuse.

(13) In the absence of congressional action, the difficulties in enforcing the child pornography laws will continue to grow increasingly worse. The mere prospect that the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution; for it threatens to create a reasonable doubt in every case of computer images even when a real child was abused. This threatens to render child pornography laws that protect real children unenforceable. Moreover, imposing an additional requirement that the Government prove beyond a reasonable doubt that the defendant knew that the image was in fact a real child--as some courts have done--threatens to result in the de facto legalization of the possession, receipt, and distribution of child pornography for all except the original producers of the material.

(14) To avoid this grave threat to the Government's unquestioned compelling interest in effective enforcement of the child pornography laws that protect real children, a statute must be adopted that prohibits a narrowly-defined subcategory of images.

(15) The Supreme Court's 1982 Ferber v. New York decision holding that child pornography was not protected drove child pornography off the shelves of adult bookstores. Congressional action is necessary now to ensure that open and notorious trafficking in such materials does not reappear, and even increase, on the Internet.

SEC. 3. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.

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

`(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable (as defined in section 1466A) from, that of a minor engaging in sexually explicit conduct; or'.

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

`(2)(A) Except as provided in subparagraph (B), `sexually explicit conduct' means actual or simulated--

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

`(ii) bestiality;

`(iii) masturbation;

`(iv) sadistic or masochistic abuse; or

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

`(B) For purposes of subsection 8(B) of this section, `sexually explicit conduct' means--

`(i) graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

`(ii) graphic or lascivious simulated;

`(I) bestiality;

`(II) masturbation; or

`(III) sadistic or masochistic abuse; or

`(iii) graphic or simulated lascivious exhibition of the genitals or pubic area of any person;'.

(c) Section 2256 is amended--

(1) in paragraph 8(D), by striking `and' at the end;

(2) in paragraph (9), by striking the period at the end and inserting `; and'; and

(3) by inserting at the end the following new paragraph:

`(10) `graphic', when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted.'.

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

`(c)(1) Except as provided in paragraph (2), it shall be an affirmative defense to a charge of violating this section that the production of the alleged child pornography did not involve the use of a minor or an attempt or conspiracy to commit an offense under this section involving such use.

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

SEC. 4. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.

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

(1) in subparagraph (C), by striking `or' at the end and inserting `and'; and

(2) by striking subparagraph (D).

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

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

`Sec. 2252B. Pandering and solicitation

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

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

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

`(d) The circumstance referred to in subsection (a) and (b) is that--

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

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

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

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

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

(2) in the table of sections at the beginning of the chapter, by inserting after the item relating to section 2252A the following:

`2252B. Pandering and solicitation.'.

SEC. 5. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.

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

(1) by inserting after section 1466 the following:

`Sec. 1466A. Obscene visual depictions of young children

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

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

`(c) For purposes of this section--

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

`(2) the term `pre-pubescent child' means that (A) the child, as depicted, is one whose physical development indicates the child is 12 years of age or younger; or (B) the child, as depicted, does not exhibit significant pubescent physical or sexual maturation. Factors that may be considered in determining significant pubescent physical maturation include body habitus and musculature, height and weight proportion, degree of hair distribution over the body, extremity proportion with respect to the torso, and dentition. Factors that may be considered in determining significant pubescent sexual maturation include breast development, presence of axillary hair, pubic hair distribution, and visible growth of the sexual organs;

`(3) the term `sexually explicit conduct' has the meaning set forth in section 2256(2); and

`(4) the term `indistinguishable' used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

`(d) The circumstance referred to in subsections (a) and (b) is that--

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

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

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

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

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

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

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

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

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

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

`Sec. 1466B. Obscene visual representations of sexual abuse of minors

`(a) Whoever, in a circumstance described in subsection (e), knowingly produces, distributes, receives, or possesses with intent to distribute a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--

`(1) depicts a minor engaging in sexually explicit conduct; and

`(2) is obscene;

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

`(b) Whoever, in a circumstance described in subsection (e), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that--

`(1) depicts a minor child engaging in sexually explicit conduct, and

`(2) is obscene,

or attempts or conspires to do so, shall be subject to the penalties set forth in section 2252A(b)(2), including the penalties provided for cases involving a prior conviction.

`(c) It is not a required element of any offense under this section that the minor child depicted actually exist.

`(d) For purposes of this section, the terms `visual depiction' has the meaning given that term in section 1466A, and the terms `sexually explicit conduct' and `minor' have the meanings given those terms in section 2256(2)(B).

`(e) The circumstance referred to in subsection (a) and (b) is that--

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

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

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

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

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

`(f) In a case under subsection (b), it is an affirmative defense that the defendant--

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

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

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

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

Respectfully submitted,

Sen. Valiant (D-AL)
U.S. Senate

Co-sponsors:

Rep. nicvaliant (D-MA)
Rep. nvnf (D-NY)
Rep. nicvaliant2 (R-CA)
U.S. House of Representatives

Bill Author: valiant (D-AL)
Aye: 75
Nay: 11
Present: 4

Senators voting Aye:
Jeremiah Denton (R-AL)
Scott (R-AL)
Matthew Faustini A1 (R-AK)
Addison McConnell (R-AK)
Wyatt Earp (D-AZ)
hefman08 (D-AZ)
Beth Ariane (D-AR)
Mike Huckabee (R-AR)
Eduardo Ramirez (D-CA)
Dr. Frank Drake (D-CA)
valiant2 (D-CO)
Senator Joshua Miller (D-CO)
paragon12321 (D-CT)
NebulaState (D-CT)
Elvish Magi (D-FL)
Christopher Richards (D-FL)
JoCaVa4 (D-GA)
Reaper (D-GA)
bigonesen5 (D-HI)
Matthew Faustini ID2 (R-ID)
Bobby Kennedy (D-IL)
paragon12322 (D-IL)
It'sbucket (R-IN)
Danforth Quayle (R-IN)
GodHatesHuskies.com (D-IA)
Alex (R-KS)
Chuckles (R-KS)
FVPIX (R-KY)
Zap Rowsdower. (R-KY)
Drew Brees (R-LA)
M. Broussard (R-LA)
Krispy (D-MD)
Ben Cardin (D-MD)
Bigonesen4 (D-MA)
Mike Bond MI (D-MI)
Jujubee (R-MI)
Michael Jay (D-MN)
Michael Jay 2 (D-MN)
Angela Merkel (R-MS)
Quien es (D-MS)
dj brown jr (D-MO)
NebulaWorld (D-MT)
elpmet (D-NE)
DeRoyalgop (R-NE)
Mitchell Miller (D-NV)
Jed Bartlet (D-NH)
Mike Bond NJ (D-NJ)
Ed Diaz (D-NJ)
Senator Elvish Magi (D-NY)
Stetson Kennedy (D-NC)
Thor 2 (L-NC)
larryreturns (R-ND)
Thor (L-ND)
Stryker (D-OH)
Pedophile Eleden (D-OH)
Sen Andrew Min OK (R-OK)
Golgamesh Clarktown (R-OK)
Chas Wyden (D-OR)
John Winters (D-PA)
Tony Benn (D-RI)
stockguy3 (D-SC)
Robert Ingersol (D-SC)
StinkyBoy (R-SD)
Crimson Volunteer (D-TN)
FVPXXIV (R-TN)
Eleden, Texas Rapist (D-TX)
dziggetai (R-TX)
Sen Andrew Min Ar (R-UT)
Juin (R-UT)
Progressivevoice (D-VT)
Progressivevoice jr. (D-VT)
stockguy2 (D-WV)
Helper Seat (R-WI)
Sox Marshal (R-WY)
The Tick (R-WY)

Senators voting Nay:
Sod-Off Baldrick (D-MT)
UsamaBinForgotted (D-NV)
BillRichardson (D-NM)
Jason Bowen III (L-NM)
Elos (D-OR)
Frank Rizzo (D-PA)
Degree1 (D-RI)
Mr. Free XI (L-SD)
Harry Byrd (D-VA)
David Miller (D-WA)
Mr. Free Jr. (L-WI)

Senators answering "Present":
James Gunn (D-ID)
Michael Schroeder (D-MA)
James B. Weaver (D-NY)
southergentleman (R-VA)

Senators not voting yet:
Jeremiah Jay (D-DE)
Jack A. Jay (D-DE)
Alice Paul (D-HI)
Len Jorring (D-IA)
Sparks (D-ME)
Adam King (D-ME)
Mason of the Big Canoe (D-MO)
James Radonis (D-NH)
Ken Kennedy Kennedy (D-WA)
Ann Baker (R-WV)