North Korea Democracy Act of 2003

Mr. President, I rise today to join my good friend, the senior Senator from Utah, in introducing the PROTECT Act, a bill providing important new tools to fight child pornography. This bill is identical to the measure that Senator Hatch and I worked so hard on in the last Congress. The bill passed the Senate by unanimous consent in the 107th Congress and I am proud to be the lead cosponsor of this legislation for the 108th Congress as well, but unfortunately, it did not become law last year because, even though the Senate was still meeting, considering and passing legislation, the House of Representatives had adjourned. The House would not return to take action on this measure that had passed the Senate unanimously or to work out our differences.

I hope that the full Senate will quickly pass this bill again, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation. I also urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to push for legislation that strives to make an ideological statement, but which may not withstand Constitutional scrutiny.

I want to take a moment to speak about the history of this important bill and the effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing S. 2520, the PROTECT Act, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition, (``Free Speech''). Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the Administration in the last Congress, it was a good faith effort to work within the First Amendment.

Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will stick. In 1996, when we passed the Child Pornography Prevention Act, (``CPPA''), many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's recent decision in Free Speech has proven them correct.

We should not sit by and do nothing. It is important that we respond to the Supreme Court decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last.

It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand First Amendment scrutiny. We need a law with real teeth, not one with false teeth.

After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children, (``NCMEC''), and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House- passed bill supported by the Administration would not.

I then placed S. 2520 on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation, including the refusal of Committee members on the other side of the aisle to consider any pending legislation on the Committee's agenda.

I still wanted to get this bill done. That is why, for a full week in October, I worked to clear and have the full Senate pass a substitute to S. 2520 that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help the NCMEC work with local and state law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure-- so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing

the recess before the mid-term elections, we were stymied again.

Even after the last election, however, during our lame duck session, I continued to work with Senator Hatch to pass this legislation through the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored.

Although I did not agree with two of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless called both for the Committee to approve the bill and voted for the bill in its amended form. I will discuss these provisions later.

I then sought, that same day, to gain the unanimous consent of the full Senate to pass S. 2520 as reported by the Judiciary Committee, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass S. 2520 by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress.

Unfortunately, the House failed to act on this measure last year and the Administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and already had a new law on the books.

Instead, I am here again with Senator Hatch asking yet again that this bill be enacted. I am glad to have been able to work hand in hand with Senator Hatch on the PROTECT Act because it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem.

The provisions of the Hatch-Leahy bill, as we introduce it, are bipartisan and good faith efforts to protect both our children and to honor the Constitution. At our hearing last October, Constitutional and criminal law scholars--one of whom was the same person who warned us last time that the CPPA would be struck down--stated that the PROTECT Act as introduced in the last Congress could withstand Constitutional scrutiny, although there were parts that were very close to the line. Let me outline some of the bill's important provisions:

I would like to emphasize some key provisions of the PROTECT Act. Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carry a 15 year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old ``pandering'' definition for two reasons, both of which respond to specific Court criticisms: First, the new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream.''

The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to ``obscene'' material, which is totally unprotected speech under Miller. Thus, while I would have liked for the provision to be crafted more narrowly so that ``purported'' material was not included, and I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to some specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering.

Second, the bill creates a new crime to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography--whether the child pornography is virtual or not.

Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government can marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized.

This improved affirmative defense provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. Sec. 2256(8)(D). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down.

The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. Sec. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this Act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records.

Next, this bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography real and virtual; minor and `youthful-adult;' simulated and

real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material (1) ``appeals to the prurient interest,'' (2) is utterly ``offensive'' in any ``community,'' and (3) has absolutely no ``literary, artistic or scientific value.''

Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2256(8)(B). Other provisions, however, take a different approach. Specifically, the CPPA's definition of ``identifiable minor'' has been modified in the bill to include a prong for persons who are ``virtually indistinguishable from an actual minor.'' This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line.

It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. These provisions should be fully debated and examined during the legislative process, and I will speak about them in more detail later.

The bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children.

The Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other non physical identifying information of the child victim, other than the age or approximate age, from being admitted at any child pornography trial. It is also intended that judges will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law.

The Hatch-Leahy PROTECT Act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children, CMEC, to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act, ECPA, for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. Sec. 13032. This change may invite federal, state or local authorities to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to the CMEC themselves. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations.

I also must express my disappointment in a recent Government Accounting Office, GAO, report that criticizes the Department of Justice information sharing regulations related to the CMEC tip line. Evidently, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world where the importance of information sharing is greater than ever. How can the Administration justify support of this bill, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service and the Postal Inspection Service, who both perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children.

This bill also provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill from the last Congress, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States.

Finally, the bill provides also a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision.

These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong.

As to the administration proposal, unfortunately legal experts could not also vouch for the constitutionality of the bill supported by the Administration in the last Congress, which seemed to challenge the Supreme Court's decision, rather than accommodate the restraints spelled out by the Supreme Court. That proposal and the associated House bill from the 107th Congress simply ignored the Supreme Court's decision, reflecting an ideological response rather than a carefully drawn bill that would stand up to scrutiny. Last year, I received letters from other Constitutional scholars and practitioners expressing the same conclusion, which I will place in the record with unanimous consent.

With regard to the potential constitutional issues and suggested improvements, as I mentioned previously, the PROTECT Act is a good faith effort to tackle this problem, but it is not perfect and I would like to see some additional changes to the bill. I hope that we can consider these as the process moves forward.

First, regarding the tip line, I would like to clarify that law enforcement agents cannot ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act. This may include clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to the CMEC is just that--a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process.

Second, regarding the affirmative defense, I would like to ensure that there is an affirmative defense for the new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made using not any child but only actual, identifiable adults.

As a general matter, it is worth repeating that we could be avoiding all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types,

which we do in one new provision that I suggested. That approach would produce a law beyond any possible challenge. This approach is also supported by the National Center for Missing and Exploited Children, which we all respect as the true expert in this field.

Following is an excerpt from the Center's answer to written questions submitted after our hearing, which I will place in the Record in its entirety:

Our view is that the vast majority (99-100%) of all child

pornography would be found to be obscene by most judges and

juries, even under a standard of beyond a reasonable doubt in

criminal cases. Even within the reasonable person under

community standards model, it is highly unlikely that any

community would not find child pornography obscene. . . .

In the post Free Speech decision legal climate, the

prosecution of child pornography under an obscenity approach

is a reasonable strategy and sound policy.

Thus, according to the National Center for Missing and Exploited Children, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. Because that is not the approach we have decided to use, I recognize that the PROTECT Act contains provisions about which some may have legitimate Constitutional questions.

Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress to which I objected that are included in the bill as we introduce it today. I felt and still feel that these provisions needlessly risked a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. Let me discuss my opposition to these two amendments offered by my good friend Senator Hatch last Congress.

As to the expansion of the pandering provision, although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support Senator Hatch's amendment extending the provision to cover ``purported'' material, which criminalizes speech even when there is no underlying material at all--whether obscene or non-obscene, virtual or real, child or adult.

The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and that goes too far.

The original pandering provision in S. 2520 was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that current provision.

I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing that he thought that the original provision was Constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it.'' I will place that letter and other materials in the record with unanimous consent of the Senate.

Because this change endangers the entire pandering provision, because it is unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I hope that we can debate the merits of that provision as the legislative process continues.

And as to the inclusion of 100 percent virtual child pornography in ``Identifiable Minor'' provision, a change to the definition of ``identifiable minor'' would expand the bill to cover ``virtual'' child pornography that is, 100 percent computer generated pictures not involving any real children. For that reason, it also presents constitutional problems. I objected to this amendment when it was added to the bill in the last Congress in Committee and I continue to have serious concerns with it now.

Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. This change which would include all ``virtual child pornography'' in the definition of child pornography, in my view, crosses the constitutional line, however, and needlessly risks protracted litigation that could assist child pornographers in escaping punishment. I hope we can work to narrow this provision.

Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was the new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might ``both confuse the statute unnecessarily and endanger the already upheld 'morphing' section of the CPPA.'' I said I was concerned that it ``could present both overbreadth and vagueness problems in a later constitutional challenge.''

The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, it is obscene, or No. 2, it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it.

The original ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what saved the original version as introduced in the 107th Congress was that it applied to child porn made with real ``persons.'' The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved. That is the provision as Senator Hatch and I introduced this bill last year.

The change adopted in the Judiciary Committee last year, however, redefined ``identifiable minor'' by creating a new category of pornography for any ``computer generated image that is virtually indistinguishable from an actual minor'' dislodged, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated.

That was never the goal of this provision and that was the reason it was constitutional. There are other provisions in the bill that deal with obscene virtual child pornography that I support. This provision was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution.

I support the definition of ``identifiable minor'' as we originally wrote and introduced it last Congress. Because this new change seriously weakens the constitutional argument supporting this entire provision, I oppose it and I hope that we can work to further narrow this provision.

These provisions raise legitimate concerns, but in the interest of making progress I support consideration of the measure as introduced. I hope that we can work to debate these issues and improve it and produce a bill with the best chance of withstanding a constitutional challenge.

That is not everyone's view. Others evidently think it is more important to make an ideological statement than to write a law. A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.''

To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the PROTECT Act seeks to accomplish.

Even though this bill is not perfect, I am glad to stand with Senator Hatch to secure its approval by the Senate as I did in the last Congress.

As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I hope that the Administration and the House do not decide to play politics with this issue

this year as I fear they did at the close of the last Congress. I urge swift consideration and passage of this important bill aimed at protecting our nation's children.

Mr. President, I ask unanimous consent that the letters and materials to which I referred be printed in the Record.

Mr. President, I would like to address an issue of enormous economic magnitude, but one that many are only vaguely familiar with. This issue is extremely important to those of us in the West and around the country because it affects countless farmers, ranchers, public land managers and private landowners, and it literally knows no boundaries.

Noxious weeds threaten fully two-thirds of all endangered species and are now considered by some experts to be the second most important threat to bio-diversity. In some areas in the West, spotted knapweed and thistle grows so dense that big game wildlife are forced to move out of the area to find edible plants. Noxious weeds also increase soil erosion, and prevent recreationists from accessing land that is infested with poisonous plants.

I believe stopping the spread of noxious weeds requires a two pronged effort. First, we must prevent new non-native weed species from becoming established in the United States, and second, we must stop or slow the spread of the noxious weeds currently present in our country.

I have stood before Congress for a number of years pushing legislation and speaking on the issue of noxious weeds. I know some in the Senate tire of hearing me bring up this issue, but growing up on a farm and ranch in western Idaho, I have experienced the destruction caused when noxious weeds are not treated and are left to overtake native species. Two-thirds of our land in Idaho is owned by the Federal Government. Our Montana, Washington, and Oregon neighbors all have comparable Federal ownership. State and private land borders much of these Federal lands. I have seen the devastation noxious weeds can have when unchecked and not effectively treated or managed largely due to lack of resources.

Because of these problems, during the 106th Congress I introduced and worked to pass the Plant Protection Act. That bill primarily dealt with the Animal Plant Health Inspection Service's, APHIS, authority to block or regulate the importation or movement of a noxious weed and plant pest, and it also provides authority for inspection and enforcement of the regulations. Basically the bill focused on stopping the weeds at our borders.

Last Congress, along with 16 of my colleagues, I introduced S. 198, the ``Noxious Weed Control Act.'' We held two Committee hearings on the bill, and it passed the Senate in November. Unfortunately there was not time to reconcile the bill with the other body, so we are introducing the legislation again.

To develop the Noxious Weed Control Act, I worked tirelessly with the National Cattlemen's Beef Association, Public Lands Council, and The Nature Conservancy. This legislation will provide a mechanism to get funding to the local level where weeds can be fought in a collaborative way. Working together is what this entire initiative is all about.

Specifically, this bill establishes, in the Office of the Secretary of the Interior, a program to provide assistance through States to eligible weed management entities. The Secretary of the Interior would appoint an Advisory Committee of ten individuals to make recommendations to the Secretary regarding the annual allocation of funds. The Secretary, in consultation with the Advisory Committee, would allocate funds to States to provide funding to eligible weed management entities to carry out projects approved by States to control or eradicate harmful, non-native weeds on public and private lands. Funds would be allocated based on several factors, including but not limited to: the seriousness of the problem in the State; the extent to which the Federal funds will be used to leverage non-Federal funds to address the problem; and the extent to which the State has already made progress in addressing the problems.

The bill directs that the States may use 8 percent of their allocation to fund applied research to solve locally significant weed management problems and solutions. States may also allocate 25 percent of available funding to encourage the formation of weed management areas and to carry out projects relating to the control and eradication of noxious weeds, and 75 percent for financial awards to eligible weed management entities. To be eligible for funding, a weed management entity must be established by local stakeholders for weed management or public education purposes, provide the State a description of its purpose and proposed projects, and fulfill any other requirements set by the State. Projects would be evaluated, giving equal consideration to economic and natural values, and selected for funding based on factors such as the seriousness of the problem, the likelihood that the project will address the problem, and the comprehensiveness of the project's approach to the noxious weed problem within the State. A 50 percent of non-Federal match is required to receive the funds.

The Department of Agriculture in Idaho, ISDA, has developed a ``Strategic Plan for Managing Noxious Weeds'' through a collaborative effort involving private landowners, State and Federal land managers, State and local governmental entities, and other interested parties. Cooperative Weed Management Areas, CWMAs, are the centerpiece of the strategic plan. CWMAs cross jurisdictional boundaries to bring together all landowners, land managers, and interested parties to identify and prioritize noxious weed strategies within the CWMA in a collaborative manner. The primary responsibilities of the ISDA are to provide coordination, administrative support, facilitation, and project cost- share funding for this collaborative effort. Idaho already has a record of working in a collaborative way on this issue, my legislation will build on the progress we have had, and establish the same formula for success in other States.

As I have said before, noxious weeds are a serious problem on both public and private lands across the Nation. Like a ``slow burning wildfire,'' noxious weeds take land out of production, force native species off the land, and interrupt the commerce and activities of all those who rely on the land for their livelihoods, including farmers, ranchers, recreationists, and others.

I believe we must focus our efforts to rid our lands of this devastating invader. Noxious weeds are not only a problem for farmers and ranchers, but a hazard to our environment, economy, and communities in Idaho, the West, and for the country as a whole. We must reclaim the rangeland for natural species. Noxious weeds do not recognize property boundaries, so if we want to win this war on weeds, we must integrate all stakeholders at the Federal, State, local, and individual levels. The Noxious Weed Control Act is an important step to ensure we are diligent in stopping the spread of these weeds. I am confident that if we work together at all levels of government and throughout our communities, we can protect our land, livelihood, and environment.

I urge my colleagues to support this effort.

Mr. President, today I rise to introduce the Internet Tax Nondiscrimination Act of 2003, to permanently extend the moratorium on Internet access taxes, as well as prevent multiple and discriminatory taxes on the Internet. There are two postulates in life that guide me today: first, always stand strong for freedom and opportunity for all people; and second, always keep your word and keep your promises.

As many in this chamber know, I have made permanently extending the moratorium on new taxes that discriminate against the Internet one of my top priorities since coming to the Senate. Looking back two years ago, as a rookie, I was pleased to work in the successful effort, with Senator McCain and others, to extend the moratorium on new Internet taxes for two years. Of course, I would have preferred to have a permanent moratorium and introduced S. 777 to do so back in 2001.

I cannot ever envision a time when it will be desirable policy for any government to tax access to the Internet. I cannot ever conceive of any instance or event that will precipitate justification for multiple or discriminatory taxes on the Internet by any government, large or small, national, State or local.

This has been a position I have held from 1997 during my days as Governor or Virginia when I was one of only four Governors with this position. I have promised the first bill I'd introduce in the 108th Congress would be a permanent ban on discriminatory taxes and Internet access taxes. I am one who stands on the side of freedom of the Internet, trusting free people and entrepreneurs, not on the side of making this advancement in technology easier to tax for the tax collectors. My legislation will permanently ban taxes on Internet access, as well as taxes on Internet transactions by multiple jurisdictions, and discriminatory taxes that unfairly target Internet transactions.

The current moratorium on Internet tax is set to expire in November of this year. I want the members of this body to understand that the moratorium on Internet tax is completely unrelated to issues surrounding sales tax simplification. I was here for the previous debate when legislation extending this moratorium was bogged down and held hostage on the extremely complicated and cumbersome issue of sales tax collection.

Since that time, I know State tax administrators have been working to simplify their sales tax system. However, I encourage my colleagues in the Senate that when considering the issue of sales tax simplification and business activity tax nexus that they do so separately from legislation that deals with the Internet tax moratorium.

I understand most of the States are looking for more tax revenue, but the Internet Tax Nondiscrimination Act will not, and does not, prohibit States from collecting sales and use tax on electronic commerce. Rather, this legislation will permanently ban taxes placed on consumers to access the Internet, like the Spanish American War Tax on telephone service, and prohibits multiple and discriminatory taxes on Internet purchases, which are taxes that would apply more than once on the same product or taxes that are higher because of the method by which a product is purchased.

The moratorium on Internet access taxes prohibits governments from placing taxes on top of the monthly rates Americans already pay to connect to the Internet. I am concerned that if this Congress were to allow new, discriminatory taxes on Internet access it would be allowing States and localities to contribute to the economic ``digital divide.'' For every dollar added to the cost of Internet access, we can expect to see lost utilization of the Internet by thousands of lower income American families nationwide.

Now, more than ever, with our Nation's economy emerging from a recession and the Congress working with the President on an economic stimulus package, the people of this country need security with regard to their financial future. Any additional tax burdens on the Internet, will mean additional costs that many Americans cannot afford, forcing the poorest in our society to reduce or even forgo their use of the Internet as a tool for education, exploration and individual opportunity.

The more expensive the government makes Internet access, the less likely people will be to buy advanced services, such as high-speed broadband connections, Internet protocol software, wireless WiFi devices and many other multimedia applications. In a time when technology and the Internet have grown into every aspect of our daily lives and where access to the Internet has become a necessity for Americans, will imposing taxes to access the Internet or levying taxes that discriminate against the Internet as a form of commerce ever be fair? The answer is that there will never be a time to tax access to the Internet nor impose discriminatory taxes on Internet commerce.

The goal of the Internet Tax Nondiscrimination Act is simple and clear: the Internet should remain as accessible as possible to all people in all parts of our country, forever.

I call on my colleagues to join me and cosponsor the Internet Tax Nondiscrimination Act of 2003, permanently extending the Internet moratorium on access, multiple and discriminatory taxes.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I ask my colleagues to join me in supporting Senate Concurrent Resolution 145. It is a critical adjunct to H.R. 1417, the next bill to be considered on the suspension calendar today. S. Con. Res. 145 will correct a number of drafting errors within H.R. 1417 prior to enrollment of that bill. While many of these drafting errors are purely technical in nature, some may have significant negative repercussions. So it is critical that we concur in S. Con. Res. 145 now and thus ensure these errors will be corrected before H.R. 1417 becomes law.

I am not going to bore my colleagues with an explanation of all the technical changes made by S. Con. Res. 145, but I would like to bore my colleagues with a few of the changes that have the most substantive effect.

S. Con. Res. 145 ensures that H.R. 1417 will not create a major conflict with H.R. 4518, the satellite bill now pending before the Senate. Section 6(b)(2) of H.R. 1417 states that, notwithstanding any other provision of law, satellite license rate-setting proceedings will be conducted pursuant to the law, rules and practices in place prior to enactment of H.R. 1417. Thus, even if H.R. 4518 is enacted after H.R. 1417, section 6(b)(2) would take precedence over the provisions of H.R. 4518. Such an outcome would undo provisions of H.R. 4518 that created an expedited procedure for submitting and adopting voluntary section 119 rate agreements and thus undo language critical to the viability of H.R. 4518. S. Con. Res. 145 fixes this problem by ensuring that the process H.R. 4518 may later establish for determining satellite TV royalties will not be preempted by the terms of H.R. 1417.

S. Con. Res. 145 also addresses the concern that the Senate amendments to H.R. 1417 will render it impossible for decisions of copyright royalty judges to take effect.

The Senate amendments to H.R. 1417 state that the Librarian of Congress shall cause a copyright royalty judge determination to be published in the Federal Register following the Register's review of the CRJ's determination. However, the Register's review is both permissive and unlimited in time. If the Register never undertakes such a review, H.R. 1417 would appear to prohibit the Librarian from publishing the CRJ's determination.

S. Con. Res. 145 addresses this problem by establishing a time frame within which the Register must complete its review for legal error. As a result, the Librarian will, after a date certain, be authorized to publish the determinations of CRJs.

S. Con. Res. 145 addresses concerns that, as structured in Senate- passed H.R. 1417, the small claims process in distribution proceedings would not work. H.R. 1417 allows a distribution proceeding participant, who has a legitimate claim of $6 to avoid being forced into a small claims proceeding if he asserts a claim of $10,005. However, under H.R. 1417, that same participant cannot be sanctioned for bad faith inflation of a claim because the amount in controversy is less than $10,000. This anomaly allows participants to game the system and force full-blown distribution proceedings, exactly the problem small claim proceedings were designed to address.

S. Con. Res. 145 addresses this problem by hewing to the approach taken in the House-passed version of H.R. 1417. This approach ensures that participants are forced into small claims proceedings if the contested amount of their claim is $10,000 or less. Thus, a participant who asserts a claim of $10,005 could still be forced into a small claims proceeding if other participants asserted they were willing to pay $6, and thus the contested amount is less than $10,000. If the participant attempts to game the system by asserting a claim of $10,007, then the participant would face fines for asserting in bad faith an amount in controversy in excess of $10,000.

And, finally, S. Con. Res. 145 addresses one further substantive problem created by the Senate amendments to H.R. 1417. H.R. 1417 unintentionally removed the current legal requirement that voluntary agreements submitted to establish rates and terms under the section 112 compulsory license must include a minimum payment for uses of copyrighted works covered by section 112. S. Con. Res. 145 would ensure that H.R. 1417 does not alter this current legal obligation.

In conclusion, Mr. Speaker, adoption of S. Con. Res. 145 is critical to ensuring that H.R. 1417, which we will take up next, will operate as intended. Thus, I urge its adoption by my colleagues.

Mr. Speaker, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), ranking member of the Committee on the Judiciary.

(Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 1417) to amend title 17, United States Code, to replace copyright arbitration royalty panels with Copyright Royalty Judges, and for other purposes.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on the bill, H.R. 1417, currently under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in strong support of H.R. 1417, legislation to reform the rate-making and royalty distribution system for compulsory and statutory licenses. The House passed its version of the bill on March 3 of this year by a vote of 406 to nothing. The other body subsequently passed H.R. 1417 on October 6 with certain amendments incorporated into a committee substitute. These changes are acceptable to both the majority and minority members of our committee with the adoption of the enrolling resolution just considered.

Mr. Speaker, with the adoption of the three copyright compulsory licenses in 1976, Congress contemplated the need for an administrative body charged with periodically adjusting the rates as well as distributing royalties under the respective licenses. The resulting entity was the Copyright Royalty Tribunal or CRT.

Over the next 17 years, however, CRTs were roundly criticized, prompting Congress to reassess the rate-making and royalty distribution construct. This deliberation produced the current system in 1993 that features copyright royalty arbitration panels or CARPs. Eleven years later we are seeking further improvements in response to existing deficiencies in the CARP system.

Among other things, H.R. 1417 addresses the uniform complaint that CARP decisions are unpredictable and inconsistent. This is generally accomplished by changing the structure from one featuring ad hoc arbitration panels to one comprised of three permanent copyright royalty judges or CRJs. To justify the need for these full-time judges and to alleviate overwhelming workloads associated with multiple proceedings that occur simultaneously, the bill staggers the timing during which individual proceedings can be adjudicated.

The bill also addresses the complaint that the process is unnecessarily expensive by eliminating the costs of the arbitrators upon private parties and by creating a specific process to give small claimants a more balanced ability to participate. The bill discourages persons or entities from disrupting the process at the 11th hour by requiring potential participants to show that they have a significant interest in the proceedings. In furtherance of marketplace negotiations, the measure establishes a cooling-off period during which time parties are to focus on reaching their own agreements.

Mr. Speaker, the amendments adopted by the other body that require our further consideration of the bill today concern the scope of discovery in the role of the copyright office under the new construct.

Briefly, the original House version created greater open-ended discovery of relevant material information over a 60-day period. The changes adopted by the other body make it more difficult for a participant to acquire documents and materials other than statements made by stakeholders and witnesses. In addition, another revision specifically limits the number of interrogatories and depositions that each participant may seek. Both of these changes are consistent with the current trend in administrative law that pares the discovery process. This will save participants time and money.

In addition, the other body strengthened the role of the copyright offices relative to the CRJs. This represents a policy preference that deviates somewhat from the House bill which conferred greater autonomy upon the CRJs to make independent decisions.

I am nonetheless satisfied that the changes adopted were born of a legitimate concern that the proceedings would be fairer and more predictable if the Copyright Office retained plenary authority to offer guidance regarding copyright law. This is especially important when novel questions of law arise.

Mr. Speaker, H.R. 1417 was painstakingly negotiated amongst the various congressional, executive, and industry stakeholders. We have worked in a bipartisan manner and developed a consensus product over a 3-year period that will effectively address an arcane, but important, matter. I urge the adoption of the bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield such time as he may consume to the gentleman from Texas (Mr. Smith), the chairman of the subcommittee.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.