From Free
Speech Coalition
H.R. 4472 -
Adam Walsh Child Protection and Safety Act of 2006 - Engrossed
Amendment as Agreed to by Senate (Sensenbrenner)
Stated Purpose
An act to protect children from sexual exploitation and
violent crime, to prevent child abuse and child pornography,
to promote Internet safety, and to honor the memory of Adam
Walsh and other child crime victims.
Status
Introduced December 8, 2005 in the House by Rep Sensenbrenner
(R-WI), with 37 co-sponsors.
Related Bills: H.R.3132, H.R.3133, H.R.4905
Latest Action: 7/20/2006 Passed/agreed to in
Senate. Status: Passed Senate with an amendment and an
amendment to the Title by Voice Vote.
Text
of Title V of HR 4472
18
USC 2257 (as if July 27, 2006)
2257/4472
FAQ (NEW!)
Bullet Points
Analysis
Bullet Points - Title V of H.R. 4472
Analysis by Reed Lee, summarized by Legislative
Affairs Director Kat Sunlove
1. Title 18, Section 2257, in effect for some 18
years, has never been enforced by the Justice
Department. The absence of enforcement,
however, has not harmed the Justice Department’s ability or
willingness to prosecute child pornography. The
Department is actively doing so, and conviction rates are
high.
2. Title 18, Section 2257 has never been the subject of any
hearing in either house of Congress. The
section had its origins in a recommendation of the Meese
Commission, even though its own findings determined that the
United States adult entertainment industry had no connection
with child pornography.
3. Child pornography is not protected by the First Amendment
but non-obscene sexually explicit material, which does not
involve children, is protected. The burden of
proof is on the party denying protection to show that a
constitutional line has been crossed. Section 2257’s most
basic flaw is that it ignores this constitutional presumption
that expression is legal if no children are involved.
4. Section 2257 imposes burdensome record-keeping requirements
on expression which is not even imaginably child pornography. Identification
information must be gathered and recorded, then cross-indexed
four different ways and stored in ways that are in some cases
impossible. Ministerial errors are a federal felony calling
for five years incarceration.
5. All re-publishers must also obtain and store the records. Proposed
changes to Section 2257 mandate widespread record-shifting, as
copies of the required records are made and transferred to
each subsequent re-publisher. The law exposes performers to
the dangers of identity theft, stalking, and worse. In some
cases, a re-publisher is required to keep records even where
the initial publisher was not.
6. Section 2257 suffers from over-inclusiveness. It
burdens thousands of expressive works which are not child
pornography in an effort to suppress the much smaller amount
of actual child pornography. Needless to say, it is unlikely
that a child pornographer would keep self-incriminating
records of his crime.
7. A better solution would be a requirement that a
primary producer check performer identification documents,
create and maintain the records, but with a penalty analogous
to those provided for in connection with the I-9 forms that
all employers must prepare.
Analysis
Analysis by Reed Lee, summarized by Legislative
Affairs Director Kat Sunlove
For some 18 years, federal law has imposed certain
record-keeping requirements upon those who produce sexually
explicit images in the United States. The law has been
supplemented with regulations promulgated by the Justice
Department, but it has never been enforced. The absence of
enforcement, however, has not harmed the Justice
Department’s ability or willingness to prosecute child
pornography. The Department is actively doing so, and
conviction rates are high. Indeed, senior Justice
Department officials told the Senate Commerce Committee
earlier this year that the Department sees no need for new
legislation on the subject.
Although Section 2257 has been amended on four occasions,
including the present, it has never been the subject of any
hearing in either house of Congress. It has never been
supported by any sort of Congressional findings (the findings
in the present Title V of the substitute H.R. 4472 essentially
address other matters). The section had its origins in a
recommendation of the Meese Commission, even thought its own
findings determined that the United States adult entertainment
industry had no connection with child pornography.
It is well established and rightly so that child pornography
is not protected by the First Amendment. But it is also
clear that non-obscene sexually explicit material, which does
not involve children, is protected by the U.S. Constitution.
Such materials retain First Amendment protections unless they
cross a properly drawn constitutional line. Furthermore,
a basic constitutional rule holds that the burden is on the
party denying protection to show that such a line has been
crossed. Nevertheless, the Meese Commission urged that the
burden should be on the “pornographers” to prove that the
material is constitutionally protected, in contradiction to
the presumption of legality. Section 2257’s most basic flaw
is that it ignores this constitutional presumption.
Beyond the constitutional flaws, Section 2257 imposes
incredible record-keeping burdens on expression which is not
even imaginably child pornography. These burdens would
substantially increase under the pending amendment. Section
2257 and its administrative regulations require far more than
an examination of performer’s identification documents and
the filing of a simple form. Under Section 2257, information
must not only be gathered and recorded, it must also be
cross-indexed four different ways and stored in ways that are
burdensome or in some cases impossible. Ministerial errors in
this paperwork scheme are a federal felony calling for five
years incarceration.
Not only must an original producer gather, create,
cross-index, and store all of these records, but all
re-publishers must also obtain and store the records
themselves. So the regulatory scheme not only requires
substantially burdensome record-keeping requirements, it also
mandates widespread record-shifting, as copies of the required
records are made and transferred to each subsequent
re-publisher. And since federal law does nothing to
protect the privacy of this information as it shifts among
re-publishers, current law exposes performers to the dangers
of identity theft, stalking, and worse. Naturally
enough, this has a chilling effect on the creation of
constitutionally protected expression.
Many of the most egregious record-keeping burdens are created
by this notion that re-publishers – so-called “secondary
producers” – must also keep records. In 1990,
Congress wisely recognized the constitutional difficulties
inherent in such a requirement, and it enacted what amounts to
the proviso in the current statutory definition of
“produces.” Under that proviso, the courts have
enjoined the Justice Department from enforcing the regulatory
provisions concerning secondary producers. But the pending
amendment makes a huge exception to the proviso. The new
exception would require record-keeping by virtually anyone who
could be considered a re-publisher. Indeed, a
re-publisher is required to keep records even where the
initial publisher was not. So, for example, a collector
of old photographs who digitizes 100-year-old French postcard
images in order to post them on a website would commit a
federal felony by doing so unless performer information could
be reconstructed and organized in proper form, obviously an
impossibility.
Section 2257 suffers from what the courts call
over-inclusiveness. It burdens hundreds of thousands, if
not millions, of expressive works which are not child
pornography in an effort to suppress the relatively much
smaller amount of existing child pornography. And it is
very unlikely that a child pornographer would keep
self-incriminating records to assist in his prosecution, even
if the Fifth Amendment allowed such a requirement.
By extending Section 2257’s record-keeping requirements to
re-publishers, the pending amendment makes this
over-inclusiveness problem far worse and exacerbates the
chilling effects which follow from the current statutory
language. A far better solution would be a requirement
that an initial producer check performer identification
documents before creating a sexually explicit image, and then
create and maintain a copy of the documents, with a penalty
analogous to the penalties provided in connection with the I-9
forms which all employers must prepare. These requirements
could not be said to substantially burden expression.
But the Byzantine and burdensome record-keeping requirements
of Section 2257 and the new Title V requirements plainly do.
When these burdens are brought to the attention of the courts,
they will likely result in depriving society of the benefit
which might flow from the simpler, more reasonable, and less
burdensome inspection and record-keeping system just
envisioned.
Original link: http://www.freespeechcoalition.com/FSCView.asp?coid=430
