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S. 3344 (110th): Protecting Children from Pornography and Internet Exploitation Act of 2008

The text of the bill below is as of Jul 28, 2008 (Placed on Calendar in the Senate).

Source: GPO

II

Calendar No. 906

110th CONGRESS

2d Session

S. 3344

IN THE SENATE OF THE UNITED STATES

July 26, 2008

introduced the following bill; which was read the first time

July 28, 2008

Read the second time and placed on the calendar

A BILL

To defend against child exploitation and child pornography through improved Internet Crimes Against Children task forces and enhanced tools to block illegal images, and to eliminate the unwarranted release of convicted sex offenders.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Protecting Children from Pornography and Internet Exploitation Act of 2008.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—PROTECT Our Children Act of 2008

Sec. 101. Short title.

Sec. 102. Definitions.

Subtitle A—National Strategy for Child Exploitation Prevention and Interdiction

Sec. 111. Establishment of National Strategy for Child Exploitation Prevention and Interdiction.

Sec. 112. Establishment of National ICAC Task Force Program.

Sec. 113. Purpose of ICAC task forces.

Sec. 114. Duties and functions of task forces.

Sec. 115. National Internet Crimes Against Children Data System.

Sec. 116. ICAC grant program.

Sec. 117. Authorization of appropriations.

Subtitle B—ADDITIONAL MEASURES TO COMBAT CHILD EXPLOITATION

Sec. 121. Additional regional computer forensic labs.

Subtitle C—Effective child pornography prosecution

Sec. 131. Amendment to section 2256 of title 18, United States Code.

Sec. 132. Amendment to section 2260 of title 18, United States Code.

Sec. 133. Prohibiting the adaptation or modification of an image of an identifiable minor to produce child pornography.

Subtitle D—National Institute of Justice Study of Risk Factors

Sec. 141. NIJ study of risk factors for assessing dangerousness.

TITLE II—Enhancing the Effective Prosecution of Child Pornography Act of 2007

Sec. 201. Short title.

Sec. 202. Money laundering predicate.

Sec. 203. Knowingly accessing child pornography with the intent to view child pornography.

TITLE III—Securing adolescents from online exploitation

Sec. 301. Reporting requirements of electronic communication service providers and remote computing service providers.

TITLE IV—Improvements to commerce clause authorities To allow for effective child pornography prosecutions

Sec. 401. Effective child pornography prosecution.

I

PROTECT Our Children Act of 2008

101.

Short title

This title may be cited as the Providing Resources, Officers, and Technology To Eradicate Cyber Threats to Our Children Act of 2008 or the PROTECT Our Children Act of 2008.

102.

Definitions

In this title, the following definitions shall apply:

(1)

Child exploitation

The term child exploitation means any conduct, attempted conduct, or conspiracy to engage in conduct involving a minor that violates section 1591, chapter 109A, chapter 110, and chapter 117 of title 18, United States Code, or any sexual activity involving a minor for which any person can be charged with a criminal offense.

(2)

Child obscenity

The term child obscenity means any visual depiction proscribed by section 1466A of title 18, United States Code.

(3)

Minor

The term minor means any person under the age of 18 years.

(4)

Sexually explicit conduct

The term sexually explicit conduct has the meaning given such term in section 2256 of title 18, United States Code.

A

National Strategy for Child Exploitation Prevention and Interdiction

111.

Establishment of National Strategy for Child Exploitation Prevention and Interdiction

(a)

In general

The Attorney General of the United States shall create and implement a National Strategy for Child Exploitation Prevention and Interdiction.

(b)

Timing

Not later than February 1 of each year, the Attorney General shall submit to Congress the National Strategy established under subsection (a).

(c)

Required contents of National Strategy

The National Strategy established under subsection (a) shall include the following:

(1)

Comprehensive long-range, goals for reducing child exploitation.

(2)

Annual measurable objectives and specific targets to accomplish long-term, quantifiable goals that the Attorney General determines may be achieved during each year beginning on the date when the National Strategy is submitted.

(3)

Annual budget priorities and Federal efforts dedicated to combating child exploitation, including resources dedicated to Internet Crimes Against Children task forces, Project Safe Childhood, FBI Innocent Images Initiative, the National Center for Missing and Exploited Children, regional forensic computer labs, Internet Safety programs, and all other entities whose goal or mission is to combat the exploitation of children that receive Federal support.

(4)

A 5-year projection for program and budget goals and priorities.

(5)

A review of the policies and work of the Department of Justice related to the prevention and investigation of child exploitation crimes, including efforts at the Office of Justice Programs, the Criminal Division of the Department of Justice, the Executive Office of United States Attorneys, the Federal Bureau of Investigation, the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Policy, and any other agency or bureau of the Department of Justice whose activities relate to child exploitation.

(6)

A description of the Department’s efforts to coordinate with international, State, local, tribal law enforcement, and private sector entities on child exploitation prevention and interdiction efforts.

(7)

Plans for interagency coordination regarding the prevention, investigation, and apprehension of individuals exploiting children, including cooperation and collaboration with—

(A)

Immigration and Customs Enforcement;

(B)

the United States Postal Inspection Service;

(C)

the Department of State;

(D)

the Department of Commerce;

(E)

the Department of Education;

(F)

the Department of Health and Human Services; and

(G)

other appropriate Federal agencies.

(8)

A review of the Internet Crimes Against Children Task Force Program, including—

(A)

the number of ICAC task forces and location of each ICAC task force;

(B)

the number of trained personnel at each ICAC task force;

(C)

the amount of Federal grants awarded to each ICAC task force;

(D)

an assessment of the Federal, State, and local cooperation in each task force, including—

(i)

the number of arrests made by each task force;

(ii)

the number of criminal referrals to United States attorneys for prosecution;

(iii)

the number of prosecutions and convictions from the referrals made under clause (ii);

(iv)

the number, if available, of local prosecutions and convictions based on ICAC task force investigations; and

(v)

any other information demonstrating the level of Federal, State, and local coordination and cooperation, as such information is to be determined by the Attorney General;

(E)

an assessment of the training opportunities and technical assistance available to support ICAC task force grantees; and

(F)

an assessment of the success of the Internet Crimes Against Children Task Force Program at leveraging State and local resources and matching funds.

(9)

An assessment of the technical assistance and support available for Federal, State, local, and tribal law enforcement agencies, in the prevention, investigation, and prosecution of child exploitation crimes.

(10)

A review of the backlog of forensic analysis for child exploitation cases at each FBI Regional Forensic lab and an estimate of the backlog at State and local labs.

(11)

Plans for reducing the forensic backlog described in paragraph (10), if any, at Federal, State and local forensic labs.

(12)

A review of the Federal programs related to child exploitation prevention and education, including those related to Internet safety, including efforts by the private sector and nonprofit entities, or any other initiatives, that have proven successful in promoting child safety and Internet safety.

(13)

An assessment of the future trends, challenges, and opportunities, including new technologies, that will impact Federal, State, local, and tribal efforts to combat child exploitation.

(14)

Plans for liaisons with the judicial branches of the Federal and State governments on matters relating to child exploitation.

(15)

An assessment of Federal investigative and prosecution activity relating to reported incidents of child exploitation crimes, which shall include a number of factors, including—

(A)

the number of high-priority suspects (identified because of the volume of suspected criminal activity or because of the danger to the community or a potential victim) who were investigated and prosecuted;

(B)

the number of investigations, arrests, prosecutions and convictions for a crime of child exploitation; and

(C)

the average sentence imposed and statutory maximum for each crime of child exploitation.

(16)

A review of all available statistical data indicating the overall magnitude of child pornography trafficking in the United States and internationally, including—

(A)

the number of computers or computer users, foreign and domestic, observed engaging in, or suspected by law enforcement agencies and other sources of engaging in, peer-to-peer file sharing of child pornography;

(B)

the number of computers or computer users, foreign and domestic, observed engaging in, or suspected by law enforcement agencies and other reporting sources of engaging in, buying and selling, or other commercial activity related to child pornography;

(C)

the number of computers or computer users, foreign and domestic, observed engaging in, or suspected by law enforcement agencies and other sources of engaging in, all other forms of activity related to child pornography;

(D)

the number of tips or other statistical data from the National Center for Missing and Exploited Children’s CyberTipline and other data indicating the magnitude of child pornography trafficking; and

(E)

any other statistical data indicating the type, nature, and extent of child exploitation crime in the United States and abroad.

(17)

Copies of recent relevant research and studies related to child exploitation, including—

(A)

studies related to the link between possession or trafficking of child pornography and actual abuse of a child;

(B)

studies related to establishing a link between the types of files being viewed or shared and the type of illegal activity; and

(C)

any other research, studies, and available information related to child exploitation.

(18)

A review of the extent of cooperation, coordination, and mutual support between private sector and other entities and organizations and Federal agencies, including the involvement of States, local and tribal government agencies to the extent Federal programs are involved.

(19)

The results of the Project Safe Childhood Conference or other conferences or meetings convened by the Department of Justice related to combating child exploitation

(d)

Appointment of high-level official

(1)

In general

The Attorney General shall designate a senior official at the Department of Justice to be responsible for coordinating the development of the National Strategy established under subsection (a).

(2)

Duties

The duties of the official designated under paragraph (1) shall include—

(A)

acting as a liaison with all Federal agencies regarding the development of the National Strategy;

(B)

working to ensure that there is proper coordination among agencies in developing the National Strategy;

(C)

being knowledgeable about budget priorities and familiar with all efforts within the Department of Justice and the FBI related to child exploitation prevention and interdiction; and

(D)

communicating the National Strategy to Congress and being available to answer questions related to the strategy at congressional hearings, if requested by committees of appropriate jurisdictions, on the contents of the National Strategy and progress of the Department of Justice in implementing the National Strategy.

112.

Establishment of National ICAC Task Force Program

(a)

Establishment

(1)

In general

There is established within the Department of Justice, under the general authority of the Attorney General, a National Internet Crimes Against Children Task Force Program (hereinafter in this title referred to as the ICAC Task Force Program), which shall consist of a national program of State and local law enforcement task forces dedicated to developing effective responses to online enticement of children by sexual predators, child exploitation, and child obscenity and pornography cases.

(2)

Intent of Congress

It is the purpose and intent of Congress that the ICAC Task Force Program established under paragraph (1) is intended to continue the ICAC Task Force Program authorized under title I of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, and funded under title IV of the Juvenile Justice and Delinquency Prevention Act of 1974.

(b)

National Program

(1)

State representation

The ICAC Task Force Program established under subsection (a) shall include at least 1 ICAC task force in each State.

(2)

Capacity and continuity of investigations

In order to maintain established capacity and continuity of investigations and prosecutions of child exploitation cases, the Attorney General, shall, in establishing the ICAC Task Force Program under subsection (a) consult with and consider all 59 task forces in existence on the date of enactment of this Act. The Attorney General shall include all existing ICAC task forces in the ICAC Task Force Program, unless the Attorney General makes a determination that an existing ICAC does not have a proven track record of success.

(3)

Ongoing review

The Attorney General shall—

(A)

conduct periodic reviews of the effectiveness of each ICAC task force established under this section; and

(B)

have the discretion to establish a new task force if the Attorney General determines that such decision will enhance the effectiveness of combating child exploitation provided that the Attorney General notifies Congress in advance of any such decision and that each state maintains at least 1 ICAC task force at all times.

(4)

Training

(A)

In general

The Attorney General may establish national training programs to support the mission of the ICAC task forces, including the effective use of the National Internet Crimes Against Children Data System.

(B)

Limitation

In establishing training courses under this paragraph, the Attorney General may not award any one entity other than a law enforcement agency more than $2,000,000 annually to establish and conduct training courses for ICAC task force members and other law enforcement officials.

(C)

Review

The Attorney General shall—

(i)

conduct periodic reviews of the effectiveness of each training session authorized by this paragraph; and

(ii)

consider outside reports related to the effective use of Federal funding in making future grant awards for training.

113.

Purpose of ICAC task forces

The ICAC Task Force Program, and each State or local ICAC task force that is part of the national program of task forces, shall be dedicated toward—

(1)

increasing the investigative capabilities of State and local law enforcement officers in the detection, investigation, and apprehension of Internet crimes against children offenses or offenders, including technology-facilitated child exploitation offenses;

(2)

conducting proactive and reactive Internet crimes against children investigations;

(3)

providing training and technical assistance to ICAC task forces and other Federal, State, and local law enforcement agencies in the areas of investigations, forensics, prosecution, community outreach, and capacity-building, using recognized experts to assist in the development and delivery of training programs;

(4)

increasing the number of Internet crimes against children offenses being investigated and prosecuted in both Federal and State courts;

(5)

creating a multiagency task force response to Internet crimes against children offenses within each State;

(6)

participating in the Department of Justice’s Project Safe Childhood initiative, the purpose of which is to combat technology-facilitated sexual exploitation crimes against children;

(7)

enhancing nationwide responses to Internet crimes against children offenses, including assisting other ICAC task forces, as well as other Federal, State, and local agencies with Internet crimes against children investigations and prosecutions;

(8)

developing and delivering Internet crimes against children public awareness and prevention programs; and

(9)

participating in such other activities, both proactive and reactive, that will enhance investigations and prosecutions of Internet crimes against children.

114.

Duties and functions of task forces

Each State or local ICAC task force that is part of the national program of task forces shall—

(1)

consist of State and local investigators, prosecutors, forensic specialists, and education specialists who are dedicated to addressing the goals of such task force;

(2)

work consistently toward achieving the purposes described in section 113;

(3)

engage in proactive investigations, forensic examinations, and effective prosecutions of Internet crimes against children;

(4)

provide forensic, preventive, and investigative assistance to parents, educators, prosecutors, law enforcement, and others concerned with Internet crimes against children;

(5)

develop multijurisdictional, multiagency responses and partnerships to Internet crimes against children offenses through ongoing informational, administrative, and technological support to other State and local law enforcement agencies, as a means for such agencies to acquire the necessary knowledge, personnel, and specialized equipment to investigate and prosecute such offenses;

(6)

participate in nationally coordinated investigations in any case in which the Attorney General determines such participation to be necessary, as permitted by the available resources of such task force;

(7)

establish or adopt investigative and prosecution standards, consistent with established norms, to which such task force shall comply;

(8)

investigate, and seek prosecution on, tips related to Internet crimes against children, including tips from Operation Fairplay, the National Internet Crimes Against Children Data System established in section 115, the National Center for Missing and Exploited Children’s CyberTipline, ICAC task forces, and other Federal, State, and local agencies, with priority being given to investigative leads that indicate the possibility of identifying or rescuing child victims, including investigative leads that indicate a likelihood of seriousness of offense or dangerousness to the community;

(9)

develop procedures for handling seized evidence;

(10)

maintain—

(A)

such reports and records as are required under this subtitle; and

(B)

such other reports and records as determined by the Attorney General; and

(11)

seek to comply with national standards regarding the investigation and prosecution of Internet crimes against children, as set forth by the Attorney General, to the extent such standards are consistent with the law of the State where the task force is located.

115.

National Internet Crimes Against Children Data System

(a)

In general

The Attorney General shall establish, consistent with all existing Federal laws relating to the protection of privacy, a National Internet Crimes Against Children Data System. The system shall not be used to search for or obtain any information that does not involve the use of the Internet to post or traffic images of child exploitation.

(b)

Purpose of system

The National Internet Crimes Against Children Data System established under subsection (a) shall be dedicated to assisting and supporting credentialed law enforcement agencies authorized to investigate child exploitation in accordance with Federal, State, local, and tribal laws, including by providing assistance and support to—

(1)

Federal agencies investigating and prosecuting child exploitation;

(2)

the ICAC Task Force Program established under section 112;

(3)

State, local, and tribal agencies investigating and prosecuting child exploitation; and

(4)

foreign or international law enforcement agencies, subject to approval by the Attorney General.

(c)

Cyber safe deconfliction and information sharing

The National Internet Crimes Against Children Data System established under subsection (a)—

(1)

shall be housed and maintained within the Department of Justice or a credentialed law enforcement agency;

(2)

shall be made available for a nominal charge to support credentialed law enforcement agencies in accordance with subsection (b); and

(3)

shall—

(A)

allow Federal, State, local, and tribal agencies and ICAC task forces investigating and prosecuting child exploitation to contribute and access data for use in resolving case conflicts;

(B)

provide, directly or in partnership with a credentialed law enforcement agency, a dynamic undercover infrastructure to facilitate online law enforcement investigations of child exploitation;

(C)

facilitate the development of essential software and network capability for law enforcement participants; and

(D)

provide software or direct hosting and support for online investigations of child exploitation activities, or, in the alternative, provide users with a secure connection to an alternative system that provides such capabilities, provided that the system is hosted within a governmental agency or a credentialed law enforcement agency.

(d)

Collection and reporting of data

(1)

In general

The National Internet Crimes Against Children Data System established under subsection (a) shall ensure the following:

(A)

Real-time reporting

All child exploitation cases involving local child victims that are reasonably detectable using available software and data are, immediately upon their detection, made available to participating law enforcement agencies.

(B)

High-priority suspects

Every 30 days, at minimum, the National Internet Crimes Against Children Data System shall—

(i)

identify high-priority suspects, as such suspects are determined by the volume of suspected criminal activity or other indicators of seriousness of offense or dangerousness to the community or a potential local victim; and

(ii)

report all such identified high-priority suspects to participating law enforcement agencies.

(C)

Annual reports

Any statistical data indicating the overall magnitude of child pornography trafficking and child exploitation in the United States and internationally is made available and included in the National Strategy, as is required under section 111(c)(16).

(2)

Rule of construction

Nothing in this subsection shall be construed to limit the ability of participating law enforcement agencies to disseminate investigative leads or statistical information in accordance with State and local laws.

(e)

Mandatory requirements of network

The National Internet Crimes Against Children Data System established under subsection (a) shall develop, deploy, and maintain an integrated technology and training program that provides—

(1)

a secure, online system for Federal law enforcement agencies, ICAC task forces, and other State, local, and tribal law enforcement agencies for use in resolving case conflicts, as provided in subsection (c);

(2)

a secure system enabling online communication and collaboration by Federal law enforcement agencies, ICAC task forces, and other State, local, and tribal law enforcement agencies regarding ongoing investigations, investigatory techniques, best practices, and any other relevant news and professional information;

(3)

a secure online data storage and analysis system for use by Federal law enforcement agencies, ICAC task forces, and other State, local, and tribal law enforcement agencies;

(4)

secure connections or interaction with State and local law enforcement computer networks, consistent with reasonable and established security protocols and guidelines;

(5)

guidelines for use of the National Internet Crimes Against Children Data System by Federal, State, local, and tribal law enforcement agencies and ICAC task forces; and

(6)

training and technical assistance on the use of the National Internet Crimes Against Children Data System by Federal, State, local, and tribal law enforcement agencies and ICAC task forces.

(f)

National Internet Crimes Against Children Data System steering committee

The Attorney General shall establish a National Internet Crimes Against Children Data System Steering Committee to provide guidance to the Network relating to the program under subsection (e), and to assist in the development of strategic plans for the System. The Steering Committee shall consist of 10 members with expertise in child exploitation prevention and interdiction prosecution, investigation, or prevention, including—

(1)

3 representatives elected by the local directors of the ICAC task forces, such representatives shall represent different geographic regions of the country;

(2)

1 representative of the Department of Justice Office of Information Services;

(3)

1 representative from Operation Fairplay, currently hosted at the Wyoming Office of the Attorney General;

(4)

1 representative from the law enforcement agency having primary responsibility for hosting and maintaining the National Internet Crimes Against Children Data System;

(5)

1 representative of the Federal Bureau of Investigation’s Innocent Images National Initiative or Regional Computer Forensic Lab program;

(6)

1 representative of the Immigration and Customs Enforcement’s Cyber Crimes Center;

(7)

1 representative of the United States Postal Inspection Service; and

(8)

1 representative of the Department of Justice.

(g)

Authorization of Appropriations

There are authorized to be appropriated for each of the fiscal years 2009 through 2016, $2,000,000 to carry out the provisions of this section.

(h)

Rule of construction

Nothing in this section may be construed to authorize any activity that is inconsistent with any Federal law, regulation, or constitutional constraint.

116.

ICAC grant program

(a)

Establishment

(1)

In general

The Attorney General is authorized to award grants to State and local ICAC task forces to assist in carrying out the duties and functions described under section 114.

(2)

Formula grants

(A)

Development of formula

At least 75 percent of the total funds appropriated to carry out this section shall be available to award or otherwise distribute grants pursuant to a funding formula established by the Attorney General in accordance with the requirements in subparagraph (B).

(B)

Formula requirements

Any formula established by the Attorney General under subparagraph (A) shall—

(i)

ensure that each State or local ICAC task force shall, at a minimum, receive an amount equal to 0.5 percent of the funds available to award or otherwise distribute grants under subparagraph (A); and

(ii)

take into consideration the following factors:

(I)

The population of each State, as determined by the most recent decennial census performed by the Bureau of the Census.

(II)

The number of investigative leads within the applicant’s jurisdiction generated by Operation Fairplay, the ICAC Data Network, the CyberTipline, and other sources.

(III)

The number of criminal cases related to Internet crimes against children referred to a task force for Federal, State, or local prosecution.

(IV)

The number of successful prosecutions of child exploitation cases by a task force.

(V)

The amount of training, technical assistance, and public education or outreach by a task force related to the prevention, investigation, or prosecution of child exploitation offenses.

(VI)

Such other criteria as the Attorney General determines demonstrate the level of need for additional resources by a task force.

(3)

Distribution of remaining funds based on need

(A)

In general

Any funds remaining from the total funds appropriated to carry out this section after funds have been made available to award or otherwise distribute formula grants under paragraph (2)(A) shall be distributed to State and local ICAC task forces based upon need, as set forth by criteria established by the Attorney General. Such criteria shall include the factors under paragraph (2)(B)(ii).

(B)

Matching requirement

A State or local ICAC task force shall contribute matching non-Federal funds in an amount equal to not less than 25 percent of the amount of funds received by the State or local ICAC task force under subparagraph (A). A State or local ICAC task force that is not able or willing to contribute matching funds in accordance with this subparagraph shall not be eligible for funds under subparagraph (A).

(C)

Waiver

The Attorney General may waive, in whole or in part, the matching requirement under subparagraph (B) if the State or local ICAC task force demonstrates good cause or financial hardship.

(b)

Application

(1)

In general

Each State or local ICAC task force seeking a grant under this section shall submit an application to the Attorney General at such time, in such manner, and accompanied by such information as the Attorney General may reasonably require.

(2)

Contents

Each application submitted pursuant to paragraph (1) shall—

(A)

describe the activities for which assistance under this section is sought; and

(B)

provide such additional assurances as the Attorney General determines to be essential to ensure compliance with the requirements of this subtitle.

(c)

Allowable Uses

Grants awarded under this section may be used to—

(1)

hire personnel, investigators, prosecutors, education specialists, and forensic specialists;

(2)

establish and support forensic laboratories utilized in Internet crimes against children investigations;

(3)

support investigations and prosecutions of Internet crimes against children;

(4)

conduct and assist with education programs to help children and parents protect themselves from Internet predators;

(5)

conduct and attend training sessions related to successful investigations and prosecutions of Internet crimes against children; and

(6)

fund any other activities directly related to preventing, investigating, or prosecuting Internet crimes against children.

(d)

Reporting Requirements

(1)

ICAC reports

To measure the results of the activities funded by grants under this section, and to assist the Attorney General in complying with the Government Performance and Results Act (Public Law 103–62; 107 Stat. 285), each State or local ICAC task force receiving a grant under this section shall, on an annual basis, submit a report to the Attorney General that sets forth the following:

(A)

Staffing levels of the task force, including the number of investigators, prosecutors, education specialists, and forensic specialists dedicated to investigating and prosecuting Internet crimes against children.

(B)

Investigation and prosecution performance measures of the task force, including—

(i)

the number of investigations initiated related to Internet crimes against children;

(ii)

the number of arrests related to Internet crimes against children; and

(iii)

the number of prosecutions for Internet crimes against children, including—

(I)

whether the prosecution resulted in a conviction for such crime; and

(II)

the sentence and the statutory maximum for such crime under State law.

(C)

The number of referrals made by the task force to the United States Attorneys office, including whether the referral was accepted by the United States Attorney.

(D)

Statistics that account for the disposition of investigations that do not result in arrests or prosecutions, such as referrals to other law enforcement.

(E)

The number of investigative technical assistance sessions that the task force provided to nonmember law enforcement agencies.

(F)

The number of computer forensic examinations that the task force completed.

(G)

The number of law enforcement agencies participating in Internet crimes against children program standards established by the task force.

(2)

Report to congress

Not later than 1 year after the date of enactment of this Act, the Attorney General shall submit a report to Congress on—

(A)

the progress of the development of the ICAC Task Force Program established under section 112; and

(B)

the number of Federal and State investigations, prosecutions, and convictions in the prior 12-month period related to child exploitation.

117.

Authorization of appropriations

(a)

In General

There are authorized to be appropriated to carry out this subtitle—

(1)

$60,000,000 for fiscal year 2009;

(2)

$60,000,000 for fiscal year 2010;

(3)

$60,000,000 for fiscal year 2011;

(4)

$60,000,000 for fiscal year 2012; and

(5)

$60,000,000 for fiscal year 2013.

(b)

Availability

Funds appropriated under subsection (a) shall remain available until expended.

B

ADDITIONAL MEASURES TO COMBAT CHILD EXPLOITATION

121.

Additional regional computer forensic labs

(a)

Additional Resources

The Attorney General shall establish additional computer forensic capacity to address the current backlog for computer forensics, including for child exploitation investigations. The Attorney General may utilize funds under this subtitle to increase capacity at existing regional forensic laboratories or to add laboratories under the Regional Computer Forensic Laboratories Program operated by the Federal Bureau of Investigation.

(b)

Purpose of New Resources

The additional forensic capacity established by resources provided under this section shall be dedicated to assist Federal agencies, State and local Internet Crimes Against Children task forces, and other Federal, State, and local law enforcement agencies in preventing, investigating, and prosecuting Internet crimes against children.

(c)

New Computer Forensic labs

If the Attorney General determines that new regional computer forensic laboratories are required under subsection (a) to best address existing backlogs, such new laboratories shall be established pursuant to subsection (d).

(d)

Location of New Labs

The location of any new regional computer forensic laboratories under this section shall be determined by the Attorney General, in consultation with the Director of the Federal Bureau of Investigation, the Regional Computer Forensic Laboratory National Steering Committee, and other relevant stakeholders.

(e)

Report

Not later than 1 year after the date of enactment of this Act, and every year thereafter, the Attorney General shall submit a report to the Congress on how the funds appropriated under this section were utilized.

(f)

Authorization of Appropriations

There are authorized to be appropriated for fiscal years 2009 through 2013, $2,000,000 to carry out the provisions of this section.

C

Effective child pornography prosecution

131.

Amendment to section 2256 of title 18, United States Code

Section 2256(5) of title 18, United States Code is amended by—

(1)

striking and before data; and

(2)

after visual image by inserting , and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format.

132.

Amendment to section 2260 of title 18, United States Code

Section 2260(a) of title 18, United States Code, is amended by—

(1)

inserting or for the purpose of transmitting a live visual depiction of such conduct after for the purpose of producing any visual depiction of such conduct; and

(2)

inserting or transmitted after imported.

133.

Prohibiting the adaptation or modification of an image of an identifiable minor to produce child pornography

(a)

Offense

Subsection (a) of section 2252A of title 18, United States Code, is amended—

(1)

in paragraph (5), by striking ; or at the end and inserting a semicolon;

(2)

in paragraph (6), by striking the period at the end and inserting ; or; and

(3)

by inserting after paragraph (6) the following:

(7)

in or affecting interstate or foreign commerce, knowingly modifies, with intent to distribute, a visual depiction of an identifiable minor so that the depiction becomes child pornography,

.

(b)

Punishment

Subsection (b) of section 2252A of title 18, United States Code, is amended by adding at the end the following:

(3)

Whoever violates, or attempts or conspires to violate, subsection (a)(7) shall be fined under this title or imprisoned not more than 15 years, or both.

.

D

National Institute of Justice Study of Risk Factors

141.

NIJ study of risk factors for assessing dangerousness

(a)

In general

Not later than 1 year after the date of enactment of this Act, the National Institute of Justice shall prepare a report to identify investigative factors that reliably indicate whether a subject of an online child exploitation investigation poses a high risk of harm to children. Such a report shall be prepared in consultation and coordination with Federal law enforcement agencies, the National Center for Missing and Exploited Children, Operation Fairplay at the Wyoming Attorney General's Office, the Internet Crimes Against Children Task Force, and other State and local law enforcement.

(b)

Contents of analysis

The report required by subsection (a) shall include a thorough analysis of potential investigative factors in on-line child exploitation cases and an appropriate examination of investigative data from prior prosecutions and case files of identified child victims.

(c)

Report to Congress

Not later than 1 year after the date of enactment of this Act, the National Institute of Justice shall submit a report to the House and Senate Judiciary Committees that includes the findings of the study required by this section and makes recommendations on technological tools and law enforcement procedures to help investigators prioritize scarce resources to those cases where there is actual hands-on abuse by the suspect.

(d)

Authorization of appropriations

There are authorized to be appropriated $500,000 to the National Institute of Justice to conduct the study required under this section.

II

Enhancing the Effective Prosecution of Child Pornography Act of 2007

201.

Short title

This title may be cited as the Enhancing the Effective Prosecution of Child Pornography Act of 2007.

202.

Money laundering predicate

Section 1956(c)(7)(D) of title 18, United States Code, is amended by inserting section 2252A (relating to child pornography) where the child pornography contains a visual depiction of an actual minor engaging in sexually explicit conduct, section 2260 (production of certain child pornography for importation into the United States), before section 2280.

203.

Knowingly accessing child pornography with the intent to view child pornography

(a)

Materials involving sexual exploitation of minors

Section 2252(a)(4) of title 18, United States Code, is amended—

(1)

in subparagraph (A), by inserting , or knowingly accesses with intent to view, after possesses; and

(2)

in subparagraph (B), by inserting , or knowingly accesses with intent to view, after possesses.

(b)

Materials constituting or containing child pornography

Section 2252A(a)(5) of title 18, United States Code, is amended—

(1)

in subparagraph (A), by inserting , or knowingly accesses with intent to view, after possesses; and

(2)

in subparagraph (B), by inserting , or knowingly accesses with intent to view, after possesses.

III

Securing adolescents from online exploitation

301.

Reporting requirements of electronic communication service providers and remote computing service providers

(a)

In general

Chapter 110 of title 18, United States Code, is amended by inserting after section 2258 the following:

2258A.

Reporting requirements of electronic communication service providers and remote computing service providers

(a)

Duty To report

(1)

In general

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any facts or circumstances described in paragraph (2) shall, as soon as reasonably possible—

(A)

complete and maintain with current information a registration with the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center, by providing the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider; and

(B)

make a report of such facts or circumstances to the CyberTipline, or any successor to the CyberTipline operated by such center.

(2)

Facts or circumstances

The facts or circumstances described in this paragraph are any facts or circumstances that appear to indicate a violation of—

(A)

section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography; or

(B)

section 1466A.

(b)

Contents of report

To the extent available to an electronic communication service provider or a remote computing service provider, each report under subsection (a)(1) shall include the following information:

(1)

Information about the involved individual

Information relating to the Internet identity of any individual who appears to have violated a Federal law in the manner described in subsection (a)(2), which shall, to the extent reasonably practicable, include the electronic mail address, website address, uniform resource locator, or any other identifying information, including self-reported identifying information.

(2)

Historical reference

Information relating to when any apparent child pornography was uploaded, transmitted, reported to, or discovered by the electronic communication service provider or remote computing service provider, as the case may be, including a date and time stamp and time zone.

(3)

Geographic location information

Information relating to the geographic location of the involved individual, hosting website, or uniform resource locator, which shall include the Internet Protocol Address or verified billing address, or, if not reasonably available, at least 1 form of geographic identifying information, including area code or zip code. The information shall also include any self-reported geographic information.

(4)

Images of apparent child pornography

Any image of any apparent child pornography relating to the incident such report is regarding.

(5)

Commingled images

Any images, data, or other digital files (collectively referred to as digital files) which are commingled or interspersed among the images of apparent child pornography. If it would impose an undue hardship to provide these commingled digital files as part of the report, because of the volume of the digital files or for other reasons, the reporting company shall, in lieu of providing those digital files, inform the CyberTipline of the existence of such digital files, and retain those digital files as if they were part of the report as required pursuant to subsection (h).

(c)

Forwarding of report to law enforcement

(1)

In general

The National Center for Missing and Exploited Children shall forward each report made under subsection (a)(1) to any appropriate law enforcement agency designated by the Attorney General under subsection (d)(2).

(2)

State and local law enforcement

The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to an appropriate official of a State or political subdivision of a State for the purpose of enforcing State criminal law.

(3)

Foreign law enforcement

The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to any appropriate foreign law enforcement agency designated by the Attorney General under subsection (d)(3), subject to the conditions established by the Attorney General under subsection (d)(3).

(d)

Attorney general responsibilities

(1)

In general

The Attorney General shall enforce this section.

(2)

Designation of Federal agencies

The Attorney General shall designate promptly the Federal law enforcement agency or agencies to which a report shall be forwarded under subsection (c)(1).

(3)

Designation of foreign agencies

The Attorney General shall promptly—

(A)

designate the foreign law enforcement agencies to which a report may be forwarded under subsection (c)(3);

(B)

establish the conditions under which such a report may be forwarded to such agencies; and

(C)

develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence relating to a report referred under subsection (c)(3).

(e)

Failure To report

An electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report required under subsection (a)(1) shall be fined—

(1)

in the case of an initial knowing and willful failure to make a report, not more than $150,000; and

(2)

in the case of any second or subsequent knowing and willful failure to make a report, not more than $300,000.

(f)

Protection of privacy

Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to—

(1)

monitor any user, subscriber, or customer of that provider;

(2)

monitor the content of any communication of any person described in paragraph (1); or

(3)

affirmatively seek facts or circumstances described in subsection (a)(2).

(g)

Conditions of disclosure information contained within report

(1)

In general

Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (c) shall not disclose any information contained in that report.

(2)

Permitted disclosures

A law enforcement agency may disclose information in a report received under subsection (c)—

(A)

to an attorney for the government for use in the performance of the official duties of that attorney;

(B)

to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;

(C)

to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;

(D)

if 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;

(E)

to a defendant in a criminal case or the attorney for that defendant, to the extent the information relates to a criminal charge pending against that defendant;

(F)

to an electronic communication service provider or remote computing provider if necessary to facilitate response to legal process issued in connection to that report, in which case, the electronic communication service provider or remote computing service provider shall be prohibited from disclosing the contents of that report to any person, except as necessary to respond to the legal process; and

(G)

as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose.

(h)

Evidence preservation

(1)

In general

For the purposes of this section, the notification to an electronic communication service provider or a remote computing service provider by the CyberTipline of receipt of a report under subsection (a)(1) shall be treated as notice to preserve, as if such notice was made pursuant to section 2703(f).

(2)

Preservation of report

Pursuant to paragraph (1), an electronic communication service provider or a remote computing service shall preserve the contents of the report provided under subsection (a)(1) and the information described in section 2703(c)(2) relating to the involved individual for not less than 180 days after the date of submission of the report under subsection (a)(1).

(3)

Authorities and duties not affected

Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703.

2258B.

Limited liability for electronic communication service providers, remote computing service providers, or domain name registrar

(a)

In general

Except as provided in subsections (b) and (c), a civil claim or criminal charge against an electronic communication service provider, a remote computing service provider, or domain name registrar, including any director, officer, employee, or agent of such electronic communication service provider, remote computing service provider, or domain name registrar arising from the performance of the reporting responsibilities of such electronic communication service provider, remote computing service provider, or domain name registrar under this section, section 2258A, or section 2258C may not be brought in any Federal or State court.

(b)

Intentional, reckless, or other misconduct

Subsection (a) shall not apply to a claim if the electronic communication service provider, remote computing service provider, or domain name registrar, or a director, officer, employee, or agent of that electronic communication service provider, remote computing service provider, or domain name registrar—

(1)

engaged in intentional misconduct; or

(2)

acted, or failed to act—

(A)

with actual malice;

(B)

with reckless disregard to a substantial risk of causing injury without legal justification; or

(C)

for a purpose unrelated to the performance of any responsibility or function under this section, section 2258A, or section 2258C.

(c)

Ordinary business activities

Subsection (a) shall not apply to an act or omission relating to an ordinary business activity of an electronic communication service provider, a remote computing service provider, or domain name registrar, including general administration or operations, the use of motor vehicles, or personnel management.

(d)

Minimizing access

An electronic communication service provider, a remote computing service provider, and domain name registrar shall—

(1)

minimize the number of employees that are provided access to any image provided under section 2258A or 2258C; and

(2)

ensure that any such image is permanently destroyed, upon notification from a law enforcement agency.

2258C.

Use of images from the CyberTipline to combat child pornography

(a)

In general

The National Center for Missing and Exploited Children is authorized to provide elements relating to any image reported to its CyberTipline to an electronic communication service provider or a remote computing service provider for the sole and exclusive purpose of permitting that electronic communication service provider or remote computing service provider to stop the further transmission of images. Such elements may include unique identifiers associated with a specific image, Internet location of images, and other technological elements that can be used to identify and stop the transmission of child pornography.

(b)

Use by electronic communication service providers and remote computing service providers

Any electronic communication service provider or remote computing service provider that receives elements relating to an image from the National Center for Missing and Exploited Children under this section may use such information only for the purposes described in this section, provided that such use shall not relieve that electronic communication service provider or remote computing service provider from its reporting obligations under section 2258A.

2258D.

Limited liability for the National Center for Missing and Exploited Children

(a)

In general

Except as provided in subsections (b) and (c), a civil claim or criminal charge against the National Center for Missing and Exploited Children, including any director, officer, employee, or agent of such center, arising from the performance of the CyberTipline responsibilities or functions of such center, as described in this section, section 2258A or 2258C of this title, or section 404 of the Missing Children's Assistance Act (42 U.S.C. 5773), or from the effort of such center to identify child victims may not be brought in any Federal or State court.

(b)

Intentional, reckless, or other misconduct

Subsection (a) shall not apply to a claim or charge if the National Center for Missing and Exploited Children, or a director, officer, employee, or agent of such center—

(1)

engaged in intentional misconduct; or

(2)

acted, or failed to act—

(A)

with actual malice;

(B)

with reckless disregard to a substantial risk of causing injury without legal justification; or

(C)

for a purpose unrelated to the performance of any responsibility or function under this section, section 2258A or 2258C of this title, or section 404 of the Missing Children's Assistance Act (42 U.S.C. 5773).

(c)

Ordinary business activities

Subsection (a) shall not apply to an act or omission relating to an ordinary business activity, including general administration or operations, the use of motor vehicles, or personnel management.

(d)

Minimizing access

The National Center for Missing and Exploited Children shall—

(1)

minimize the number of employees that are provided access to any image provided under section 2258A; and

(2)

ensure that any such image is permanently destroyed upon notification from a law enforcement agency.

2258E.

Definitions

In sections 2258A through 2258D—

(1)

the terms attorney for the government and State have the meanings given those terms in rule 1 of the Federal Rules of Criminal Procedure;

(2)

the term electronic communication service has the meaning given that term in section 2510;

(3)

the term electronic mail address has the meaning given that term in section 3 of the CAN-SPAM Act of 2003 (15 U.S.C. 7702);

(4)

the term Internet has the meaning given that term in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 note);

(5)

the term remote computing service has the meaning given that term in section 2711; and

(6)

the term website means any collection of material placed in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol.

.

(b)

Technical and conforming amendments

(1)

Repeal of superceded provision

Section 227 of the Crime Control Act of 1990 (42 U.S.C. 13032) is repealed.

(2)

Table of sections

The table of sections for chapter 110 of title 18, United States Code, is amended by inserting after the item relating to section 2258 the following:

Sec. 2258A. Reporting requirements of electronic communication service providers and remote computing service providers.

Sec. 2258B. Limited liability for electronic communication service providers, remote computing service providers, or domain name registrar.

Sec. 2258C. Use of images from the CyberTipline to combat child pornography.

Sec. 2258D. Limited liability for the National Center for Missing and Exploited Children.

Sec. 2258E. Definitions.

.

IV

Improvements to commerce clause authorities To allow for effective child pornography prosecutions

401.

Effective child pornography prosecution

(a)

Sexual exploitation of children

Section 2251 of title 18, United States Code, is amended—

(1)

in subsection (a), by—

(A)

inserting or for the purpose of transmitting a live visual depiction of such conduct after for the purpose of producing any visual depiction of such conduct; and

(B)

by striking transported the first place it appears and all that follows and inserting transported or transmitted in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce or mailed.;

(2)

in subsection (b), by—

(A)

inserting or for the purpose of transmitting a live visual depiction of such conduct after for the purpose of producing any visual depiction of such conduct; and

(B)

by striking transported the first place it appears and all that follows and inserting the following: transported or transmitted in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce or mailed.;

(3)

in subsection (c)(2), by striking computer each place it appears and inserting using a facility or means of interstate or foreign commerce; and

(4)

in subsection (d)(2), by striking transported in interstate or foreign commerce by any means including by computer each place it appears and inserting transported in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce.

(b)

Selling or buying of children

Section 2251A(c)(2) of title 18, United States Code, is amended by striking in interstate or foreign commerce by any means including by computer or and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate and foreign commerce or by.

(c)

Certain activities relating to material involving the sexual exploitation of minors

Section 2252(a) of title 18, United States Code, is amended—

(1)

in paragraph (1), by striking in interstate or foreign commerce by any means including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce;

(2)

in paragraph (2), in the matter preceding subparagraph (A)—

(A)

by striking has been shipped or transported in interstate or foreign commerce and inserting has been shipped or transported in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(B)

by striking distribution in interstate or foreign commerce and inserting distribution in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce;

(3)

in paragraph (3)(B), in the matter preceding clause (i), by striking has been shipped or transported in interstate or foreign commerce and inserting has been shipped or transported in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(4)

in paragraph (4)(B), in the matter preceding clause (i), by striking has been shipped or transported in interstate or foreign commerce and inserting has been shipped or transported in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce.

(d)

Certain activities relating to material constituting or containing child pornography

Section 2252A(a) of title 18, United States Code, is amended—

(1)

in paragraph (1), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate foreign commerce or using a facility or means of interstate or foreign commerce;

(2)

in paragraph (2)—

(A)

in subparagraph (A), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(B)

in subparagraph (B), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce;

(3)

in paragraph (3)—

(A)

in subparagraph (A), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(B)

in subparagraph (B), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce;

(4)

in paragraph (4)(B), by striking in interstate or foreign commerce by any means, including by computer the first place it appears and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce;

(5)

in paragraph (5)(B), by striking in interstate or foreign commerce by any means, including by computer the first place it appears and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(6)

in paragraph (6)—

(A)

in subparagraph (A), by striking in interstate or foreign commerce by any means, including by computer and inserting in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce; and

(B)

in subparagraph (C), by striking transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer and inserting or a facility or means of interstate or foreign commerce.

(e)

Obscene visual representations of the sexual abuse of children

Section 1466A(d)(4) of title 18, United States Code, is amended by striking transported in interstate or foreign commerce by any means, including by computer the first place it appears and inserting transported in or affecting interstate or foreign commerce or using a facility or means of interstate or foreign commerce.

(f)

Rule of construction

Nothing in this section or the amendments made by this section may be construed to—

(1)

imply that there is not an overlap between conduct in or affecting interstate or foreign commerce and conduct using a facility or means of interstate or foreign commerce; or

(2)

foreclose any argument or ruling with respect to any Federal law that, for the purposes of Federal jurisdiction, the use of a facility or means of interstate or foreign commerce affects interstate or foreign commerce.

July 28, 2008

Read the second time and placed on the calendar