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

March 6, 2003

Mr. SMITH of Texas (for himself, Mr. COBLE, Mr. SENSENBRENNER, Mr. POMEROY, Mr. LAMPSON, Mr. FOLEY, Mr. BAKER, Mr. BARTLETT of Maryland, Mr. CANNON, Mr. CULBERSON, Mr. DELAY, Mr. WAMP, Mr. RYUN of Kansas, Mr. GILCHREST, Mr. WILSON of South Carolina, Mr. GREEN of Wisconsin, Mr. HUNTER, Ms. JACKSON-LEE of Texas, Mr. JENKINS, Mrs. JOHNSON of Connecticut, Mr. PICKERING, Mr. SIMMONS, Mr. SOUDER, Mr. SPRATT, Mr. STENHOLM, Mr. WELDON of Florida, Mr. PENCE, Mr. OXLEY, Mr. MATHESON, Mr. LOBIONDO, Mr. KENNEDY of Minnesota, Mr. ROGERS of Michigan, Mr. WELLER, Mr. BACHUS, Ms. HART, Mr. GOODLATTE, Mr. KELLER, Mrs. CAPITO, and Mr. VISCLOSKY) introduced the following bill; which was referred to the Committee on the Judiciary

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

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

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

(2) in table of sections at the beginning of the chapter, by inserting after the item relating to section 1466 the following new items:

`1466A. Obscene visual depictions of young children.

`1466B. Obscene visual representations of pre-pubescent sexual abuse.'.

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

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

SEC. 6. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES AGAINST MINORS.

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

(1) by inserting at the end the following:

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

`(a) Whoever, in any circumstance described in subsection (c), knowingly--

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

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

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

`(b) For purposes of this section--

`(1) the term `child pornography' has the meaning set forth in section 2256(8);

`(2) the terms `visual depiction', `pre-pubescent child', and `indistinguishable' have the meanings respectively set forth for those terms in section 1466A(c); and

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

`(c) The circumstance referred to in subsection (a) is that--

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

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

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

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

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

(2) in the table of sections at the beginning of the chapter, by inserting at the end the following:

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

SEC. 7. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR DISTRIBUTION IN THE UNITED STATES.

Section 2251 is amended--

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

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

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

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

`(2) The circumstance referred to in paragraph (1) is that--

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

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

SEC. 8. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.

Sections 2251(e) (as redesignated by section 7(2)), 2252(b), and 2252A(b) of title 18, United States Code, are each amended by inserting `chapter 71,' immediately before each occurrence of `chapter 109A,'.

SEC. 9. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND RELATED INFORMATION.

(a) Section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032) is amended--

(1) in subsection (b)(1)--

(A) by inserting `2252B,' after `2252A,'; and

(B) by inserting `or a violation of section 1466A or 1466B of that title,' after `of that title),';

(2) in subsection (c), by inserting `or pursuant to' after `to comply with';

(3) by amending subsection (f)(1)(D) to read as follows:

`(D) where the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law.';

(4) by redesignating paragraph (3) of subsection (b) as paragraph (4); and

(5) by inserting after paragraph (2) of subsection (b) the following new paragraph:

`(3) In addition to forwarding such reports to those agencies designated in subsection (b)(2), the National Center for Missing and Exploited Children is authorized to forward any such report to an appropriate official of a state or subdivision of a state for the purpose of enforcing state criminal law.'.

(b) Section 2702 of title 18, United States Code is amended--

(1) in subsection (b)--

(A) in paragraph (6)--

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

(ii) by striking subparagraph (B); and

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

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

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

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

`(6) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or'; and

(2) in subsection (c)--

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

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

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

`(5) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13032); or'.

SEC. 10. SEVERABILITY.

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

SEC. 11. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.

Section 3486(a)(1)(C)(i) of title 18, United States Code, is amended by striking `the name, address' and all that follows through `subscriber or customer utilized' and inserting `the information specified in section 2703(c)(2)'.

SEC. 12. DE NOVO REVIEW OF DEPARTURES.

(a) IN GENERAL- Section 3742 of title 18, United States Code, is amended--

(1) in subsection (e)(3), by striking `unreasonable' and inserting `unwarranted';

(2) at the end of subsection (e), by striking `clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.' and inserting `clearly erroneous. If the sentence is outside the applicable guideline range, the court of appeals shall review de novo the district court's determination under section 3553(b) that a departure is warranted on the ground that there exists an aggravating or mitigated circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines, that should result in a sentence outside the applicable guideline range. In reviewing the district court's determination of the applicable guideline range referred to in section 3553(a)(4), the court of appeals shall give due deference to the district court's application of the guidelines to the facts.'; and

(3) in subsection (f)(2), by striking `is unreasonable' and inserting `is unwarranted'.

(b) REPORT BY THE ATTORNEY GENERAL-

(1) Not later than 15 days after a district court's grant of a downward departure in any case, other than a case involving a downward departure for substantial assistance to authorities pursuant to section 5K1.1 of the Sentencing Guidelines, the Attorney General shall report to the House and Senate Committees on the Judiciary, setting forth the case, the facts involved, the identity of the district court judge, the district court's stated reasons, whether or not the court provided the United States with advance notice of its intention to depart, the position of the parties with respect to the downward departure, whether or not the United States has filed, or intends to file, a motion for reconsideration; whether or not the defendant has filed a notice of appeal concerning any aspect of the case, and whether or not the United States has filed, or intends to file, a notice of appeal of the departure pursuant to section 3742 of the title 18, United States Code.

(2) In any such case, the Attorney General shall thereafter report to the House and Senate Committees on the Judiciary not later than 5 days after a decision by the Solicitor General whether or not to authorize an appeal of the departure, informing the committees of the decision and the basis for it.

SEC. 13. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.

Section 2516(1)(c) of title 18, United States Code, is amended by inserting `1466A, 1466B,' before `2251'.

SEC. 14. RECORDKEEPING TO DEMONSTRATE MINORS WERE NOT USED IN PRODUCTION OF PORNOGRAPHY.

Not later than 1 year after enactment of this Act, the Attorney General shall submit to Congress a report detailing the number of times since January 1993 that the Department of Justice has inspected the records of any producer of materials regulated pursuant to section 2257 of title 18, United States Code, and section 75 of title 28 of the Code of Federal Regulations. The Attorney General shall indicate the number of violations prosecuted as a result of those inspections.

END