IB Union Calendar No. 224 112TH CONGRESS 1ST SESSION H. R. 1981 [Report No. 112–281, Part I] To amend title 18, United States Code, with respect to child pornography and child exploitation offenses. IN THE HOUSE OF REPRESENTATIVES MAY 25, 2011 Mr. SMITH of Texas (for himself and Ms. WASSERMAN SCHULTZ) introduced the following bill; which was referred to the Committee on the Judiciary NOVEMBER 10, 2011 Reported with an amendment and referred to the Committee on Energy and Commerce for a period ending not later than December 9, 2011, for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(f), rule X [Strike out all after the enacting clause and insert the part printed in italic] srobinson on DSK4SPTVN1PROD with BILLS DECEMBER 9, 2011 Referral to the Committee on Energy and Commerce extended for a period ending not later than December 16, 2011 VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H1981.RH H1981 2 DECEMBER 16, 2011 Additional sponsors: Mr. RUPPERSBERGER, Mr. FLORES, Mr. FORBES, Mr. COBLE, Mr. FRANKS of Arizona, Mr. GALLEGLY, Mr. GOWDY, Mr. CHABOT, Mr. DEUTCH, Mr. SHULER, Mr. DANIEL E. LUNGREN of California, Mr. CRITZ, Mr. UPTON, Mr. LATOURETTE, Mrs. EMERSON, Mrs. LUMMIS, Mr. QUIGLEY, Mr. MARINO, Mr. SCHIFF, Mr. CALVERT, Ms. JACKSON LEE of Texas, Mr. STARK, Mr. PIERLUISI, Mr. GRIFFIN of Arkansas, Mr. ROSS of Florida, Mr. PENCE, Mr. AMODEI, Mr. REICHERT, Mr. NUGENT, Ms. HERRERA BEUTLER, Mr. MILLER of Florida, Mr. WILSON of South Carolina, Mr. JORDAN, Mr. KLINE, Mr. MCINTYRE, Mr. AUSTRIA, Mr. WOMACK, and Mr. FITZPATRICK DECEMBER 16, 2011 The Committee on Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed [For text of introduced bill, see copy of bill as introduced on May 25, 2011] A BILL srobinson on DSK4SPTVN1PROD with BILLS To amend title 18, United States Code, with respect to child pornography and child exploitation offenses. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H1981.RH H1981 3 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the ‘‘Protecting Children 5 From Internet Pornographers Act of 2011’’. 6 SEC. 2. FINANCIAL FACILITATION OF ACCESS TO CHILD 7 PORNOGRAPHY. 8 (a) OFFENSE.—Chapter 95 of title 18, United States 9 Code, is amended by adding at the end the following: 10 ‘‘§ 1960A. Financial facilitation of access to child por11 nography 12 ‘‘(a) IN GENERAL.—Whoever knowingly conducts, or 13 attempts or conspires to conduct, a financial transaction 14 (as defined in section 1956(c)) in or affecting interstate or 15 foreign commerce, knowing that such transaction will fa16 cilitate access to, or the possession of, child pornography 17 (as defined in section 2256) shall be fined under this title 18 or imprisoned not more than 20 years, or both. 19 ‘‘(b) EXCLUSION FROM OFFENSE.—This section does 20 not apply to a financial transaction conducted by a person 21 in cooperation with, or with the consent of, any Federal, 22 State, or local law enforcement agency.’’. srobinson on DSK4SPTVN1PROD with BILLS 23 (b) CLERICAL AMENDMENT.—The table of sections at 24 the beginning of chapter 95 of title 18, United States Code, 25 is amended by adding at the end the following new item: ‘‘1960A. Financial facilitation of access to child pornography.’’. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6213 E:\BILLS\H1981.RH H1981 4 1 SEC. 3. MONEY LAUNDERING PREDICATE. 2 Section 1956(c)(7)(D) of title 18, United States Code, 3 is amended— 4 (1) by inserting ‘‘1466A (relating to obscene vis- 5 ual representation of the abuse of children),’’ before 6 ‘‘section 1708’’; and 7 (2) by inserting ‘‘1960A (relating to financial 8 facilitation of access to child pornography),’’ before 9 ‘‘section 2113’’. 10 SEC. 4. RETENTION OF CERTAIN RECORDS BY ELECTRONIC 11 12 COMMUNICATION SERVICE PROVIDERS. (a) IN GENERAL.—Section 2703 of title 18, United 13 States Code, is amended by adding at the end the following: srobinson on DSK4SPTVN1PROD with BILLS 14 ‘‘(h) RETENTION OF CERTAIN RECORDS.— 15 ‘‘(1) A commercial provider of an electronic com- 16 munication service shall retain for a period of at least 17 one year a log of the temporarily assigned network 18 addresses the provider assigns to a subscriber to or 19 customer of such service that enables the identification 20 of the corresponding customer or subscriber informa- 21 tion under subsection (c)(2) of this section. 22 ‘‘(2) Access to a record or information required 23 to be retained under this subsection may not be com- 24 pelled by any person or other entity that is not a gov- 25 ernmental entity. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 5 1 ‘‘(3) The Attorney General shall make a study to 2 determine the costs associated with compliance by 3 providers with the requirement of paragraph (1). 4 Such study shall include an assessment of all the 5 types of costs, including for hardware, software, and 6 personnel that are involved. Not later than 2 years 7 after the date of the enactment of this paragraph, the 8 Attorney General shall report to Congress the results 9 of that study. 10 ‘‘(4) In this subsection— 11 ‘‘(A) the term ‘commercial provider’ means 12 a provider of electronic communication service 13 that offers Internet access capability for a fee to 14 the public or to such classes of users as to be ef- 15 fectively available to the public, regardless of the 16 facilities used; and 17 ‘‘(B) the term ‘Internet’ has the same mean- 18 ing given that term in section 230(f) of the Com- 19 munications Act of 1934.’’. 20 (b) SENSE OF CONGRESS.—It is the sense of Con- srobinson on DSK4SPTVN1PROD with BILLS 21 gress— 22 (1) to encourage electronic communication serv- 23 ice providers to give prompt notice to their customers 24 in the event of a breach of the data retained pursuant 25 to section 2703(h) of title 18 of the United States •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 6 1 Code, in order that those effected can take the nec- 2 essary steps to protect themselves from potential mis- 3 use of private information; and 4 (2) that records retained pursuant to section 5 2703(h) of title 18, United States Code, should be 6 stored securely to protect customer privacy and pre- 7 vent against breaches of the records. 8 (c) TRANSITION RULE.—The amendment made by this 9 section shall not apply until 180 days after the date of the 10 enactment of this Act to a provider of an electronic commu11 nications service that does not, on that date of enactment, 12 have in effect a system of retention of records that complies 13 with the requirements of that amendment. 14 (d) STUDY.— 15 (1) The Attorney General, not later than 2 years 16 after the date of the enactment of this Act, shall com- 17 plete a study of providers affected by section 2703(h) 18 of title 18, United States Code. srobinson on DSK4SPTVN1PROD with BILLS 19 (2) Such study shall include— 20 (A) the privacy standards and consider- 21 ations implemented by those providers as they 22 comply with the requirements of section 2703(h); 23 and 24 (B) the frequency of any reported breaches 25 of data retained pursuant to section 2703(h). •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 7 1 (3) The Attorney General shall, upon the comple- 2 tion of the study, report the results of the study to 3 Congress. 4 SEC. 5. NO CAUSE OF ACTION AGAINST A PROVIDER DIS- 5 CLOSING INFORMATION UNDER THIS CHAP- 6 TER. 7 Section 2703(e) of title 18, United States Code, is 8 amended by inserting ‘‘retaining records,’’ after ‘‘other spec9 ified persons for’’. 10 SEC. 6. GOOD FAITH RELIANCE ON REQUIREMENT. 11 Section 2707(e)(1) of title 18, United States Code, is 12 amended by inserting ‘‘, or the requirement to retain 13 records under section 2703(h),’’ after ‘‘section 2703(f)’’. 14 SEC. 7. SUBPOENA AUTHORITY. 15 Section 566(e)(1) of title 28, United States Code, is 16 amended— 17 18 (1) in subparagraph (A), by striking ‘‘and’’ at the end; 19 srobinson on DSK4SPTVN1PROD with BILLS 20 (2) in subparagraph (B), by striking the period at the end and inserting ‘‘; and’’; and 21 (3) by adding at the end the following: 22 ‘‘(C) issue administrative subpoenas in accord- 23 ance with section 3486 of title 18, solely for the pur- 24 pose of investigating unregistered sex offenders (as de- 25 fined in such section 3486).’’. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 8 1 SEC. 8. PROTECTION OF CHILD WITNESSES. 2 Section 1514 of title 18, United States Code, is amend- 3 ed— 4 (1) in subsection (b)— 5 (A) in paragraph (1)— 6 (i) by inserting ‘‘or its own motion,’’ 7 after ‘‘attorney for the Government,’’; and 8 (ii) by inserting ‘‘or investigation’’ 9 after ‘‘Federal criminal case’’ each place it 10 appears; 11 (B) by redesignating paragraphs (2), (3), 12 and (4) as paragraphs (3), (4), and (5), respec- 13 tively; 14 (C) by inserting after paragraph (1) the fol- 15 16 lowing: ‘‘(2) In the case of a minor witness or victim, the court 17 shall issue a protective order prohibiting harassment or in18 timidation of the minor victim or witness if the court finds 19 evidence that the conduct at issue is reasonably likely to 20 adversely affect the willingness of the minor witness or vic21 tim to testify or otherwise participate in the Federal crimi22 nal case or investigation. Any hearing regarding a protec- srobinson on DSK4SPTVN1PROD with BILLS 23 tive order under this paragraph shall be conducted in ac24 cordance with paragraphs (1) and (3), except that the court 25 may issue an ex parte emergency protective order in ad26 vance of a hearing if exigent circumstances are present. If •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 9 1 such an ex parte order is applied for or issued, the court 2 shall hold a hearing not later than 14 days after the date 3 such order was applied for or is issued.’’; 4 (D) in paragraph (4), as so redesignated, by 5 striking ‘‘(and not by reference to the complaint 6 or other document)’’; and 7 (E) in paragraph (5), as so redesignated, in 8 the second sentence, by inserting before the pe- 9 riod at the end the following: ‘‘, except that in 10 the case of a minor victim or witness, the court 11 may order that such protective order expires on 12 the later of 3 years after the date of issuance or 13 the date of the eighteenth birthday of that minor 14 victim or witness’’; and 15 (2) by striking subsection (c) and inserting the 16 following: 17 ‘‘(c) Whoever knowingly and intentionally violates or 18 attempts to violate an order issued under this section shall 19 be fined under this title, imprisoned not more than 5 years, 20 or both. srobinson on DSK4SPTVN1PROD with BILLS 21 ‘‘(d)(1) As used in this section— 22 ‘‘(A) the term ‘course of conduct’ means a series 23 of acts over a period of time, however short, indi- 24 cating a continuity of purpose; •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 10 1 ‘‘(B) the term ‘harassment’ means a serious act 2 or course of conduct directed at a specific person 3 that— 4 ‘‘(i) causes substantial emotional distress in 5 such person; and 6 ‘‘(ii) serves no legitimate purpose; 7 ‘‘(C) the term ‘immediate family member’ has 8 the meaning given that term in section 115 and in- 9 cludes grandchildren; 10 ‘‘(D) the term ‘intimidation’ means a serious act 11 or course of conduct directed at a specific person 12 that— 13 ‘‘(i) causes fear or apprehension in such 14 person; and 15 ‘‘(ii) serves no legitimate purpose; 16 srobinson on DSK4SPTVN1PROD with BILLS 17 ‘‘(E) the term ‘restricted personal information’ has the meaning give that term in section 119; 18 ‘‘(F) the term ‘serious act’ means a single act of 19 threatening, retaliatory, harassing, or violent conduct 20 that is reasonably likely to influence the willingness 21 of a victim or witness to testify or participate in a 22 Federal criminal case or investigation; and 23 ‘‘(G) the term ‘specific person’ means a victim or 24 witness in a Federal criminal case or investigation, •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 11 1 and includes an immediate family member of such a 2 victim or witness. 3 ‘‘(2) For purposes of subparagraphs (B)(ii) and 4 (D)(ii) of paragraph (1), a court shall presume, subject to 5 rebuttal by the person, that the distribution or publication 6 using the Internet of a photograph of, or restricted personal 7 information regarding, a specific person serves no legiti8 mate purpose, unless that use is authorized by that specific 9 person, is for news reporting purposes, is designed to locate 10 that specific person (who has been reported to law enforce11 ment as a missing person), or is part of a government-au12 thorized effort to locate a fugitive or person of interest in 13 a criminal, antiterrorism, or national security investiga14 tion.’’. 15 SEC. 9. SENTENCING GUIDELINES. 16 Pursuant to its authority under section 994 of title 17 28, United States Code, and in accordance with this section, 18 the United States Sentencing Commission shall review and, 19 if appropriate, amend the Federal sentencing guidelines srobinson on DSK4SPTVN1PROD with BILLS 20 and policy statements to ensure— 21 (1) that the guidelines provide an additional 22 penalty increase above the sentence otherwise applica- 23 ble in Part J of Chapter 2 of the Guidelines Manual 24 if the defendant was convicted of a violation of section 25 1591 of title 18, United States Code, or chapters •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 12 1 109A, 109B, 110, or 117 of title 18, United States 2 Code; and 3 (2) if the offense described in paragraph (1) in- 4 volved causing or threatening to cause physical injury 5 to a person under 18 years of age, in order to obstruct 6 the administration of justice, an additional penalty 7 increase above the sentence otherwise applicable in 8 Part J of Chapter 2 of the Guidelines Manual. 9 SEC. 10. ENHANCED PENALTIES FOR POSSESSION OF 10 CHILD PORNOGRAPHY. 11 12 (a) CERTAIN ACTIVITIES RELATING VOLVING THE TO MATERIAL IN- SEXUAL EXPLOITATION OF MINORS.—Section 13 2252(b)(2) of title 18, United States Code, is amended by 14 inserting after ‘‘but if’’ the following: ‘‘any visual depiction 15 involved in the offense involved a prepubescent minor or 16 a minor who had not attained 12 years of age, such person 17 shall be fined under this title and imprisoned for not more 18 than 20 years, or if’’. 19 (b) CERTAIN ACTIVITIES RELATING 20 CONSTITUTING OR TO MATERIAL CONTAINING CHILD PORNOGRAPHY.— 21 Section 2252A(b)(2) of title 18, United States Code, is 22 amended by inserting after ‘‘but, if’’ the following: ‘‘any srobinson on DSK4SPTVN1PROD with BILLS 23 image of child pornography involved in the offense involved 24 a prepubescent minor or a minor who had not attained 12 •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 13 1 years of age, such person shall be fined under this title and 2 imprisoned for not more than 20 years, or if’’. 3 SEC. 11. ADMINISTRATIVE SUBPOENAS. 4 (a) IN GENERAL.—Section 3486(a)(1) of title 18, 5 United States Code, is amended— 6 (1) in subparagraph (A)— 7 (A) in clause (i), by striking ‘‘or’’ at the 8 end; 9 (B) by redesignating clause (ii) as clause 10 (iii); and 11 (C) by inserting after clause (i) the fol- 12 lowing: 13 ‘‘(ii) an unregistered sex offender conducted by 14 the United States Marshals Service, the Director of 15 the United States Marshals Service; or’’; and 16 (2) in subparagraph (D)— 17 (A) by striking ‘‘paragraph, the term’’ and 18 inserting the following: ‘‘paragraph— 19 ‘‘(i) the term’’; 20 (B) by striking the period at the end and srobinson on DSK4SPTVN1PROD with BILLS 21 inserting ‘‘; and’’; and 22 (C) by adding at the end the following: 23 ‘‘(ii) the term ‘sex offender’ means an individual 24 required to register under the Sex Offender Registra- 25 tion and Notification Act (42 U.S.C. 16901 et seq.).’’. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 14 1 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 2 Section 3486(a) of title 18, United States Code, is amend3 ed— 4 5 (1) in paragraph (6)(A), by striking ‘‘United State’’ and inserting ‘‘United States’’; 6 7 (2) in paragraph (9), by striking ‘‘(1)(A)(ii)’’ and inserting ‘‘(1)(A)(iii)’’; and 8 srobinson on DSK4SPTVN1PROD with BILLS 9 (3) in paragraph (10), by striking ‘‘paragraph (1)(A)(ii)’’ and inserting ‘‘paragraph (1)(A)(iii)’’. •HR 1981 RH VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 srobinson on DSK4SPTVN1PROD with BILLS VerDate Mar 15 2010 23:12 Dec 16, 2011 Jkt 019200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6203 E:\BILLS\H1981.RH H1981 Union Calendar No. 224 H. R. 1981 srobinson on DSK4SPTVN1PROD with BILLS 112TH CONGRESS 1ST SESSION [Report No. 112–281, Part I] A BILL To amend title 18, United States Code, with respect to child pornography and child exploitation offenses. DECEMBER 16, 2011 The Committee on Energy and Commerce discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed H1981 E:\BILLS\H1981.RH Sfmt 6651 Fmt 6651 Frm 00016 PO 00000 Jkt 019200 23:12 Dec 16, 2011 VerDate Mar 15 2010