Competition in Radio and Concert Industries Act of 2003

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

Mr. Chairman, sexual predators target America's children every day in large cities, small towns, and even in cyberspace. Sexual exploitation of children, a prime motive for kidnapping, is on the rise. When it comes to abduction, rape, and murder of children, the United States must have a zero tolerance policy.

H.R. 1104, the Child Abduction Prevention Act, is comprehensive legislation that directly and forcefully addresses these heinous crimes. The bill is virtually identical to H.R. 5422, which overwhelmingly passed the House last October by a vote of 390 to 24. Like so many other meritorious bills sent to the other body in the last Congress, this legislation was allowed to die by the Democrat leadership.

An abducted child is a parent's worst nightmare. We must ensure that law enforcement has every possible tool necessary to try to recover a missing child quickly and safely. H.R. 1104 not only gets the word out after a kidnapping, but it also takes strong steps to prevent them from occurring in the first place. The bill strengthens penalties against kidnapping and aids law enforcement agencies to effectively prevent, investigate, and prosecute crimes against children.

Prompt public alerts of an abducted child could be the difference between life and death for that innocent victim. Recognizing this, the bill codifies the AMBER Alert program currently in place in the Departments of Justice and Transportation and authorizes increased funding to help States deploy child abduction communications warning networks.

For those individuals that would harm a child, we must ensure that punishment is severe, and that sexual predators are not allowed to slip through the cracks of a system and harm other children.

To this end, this legislation provides a 20-year mandatory minimum sentence of imprisonment for nonfamilial abductions of a child under the age of 18, lifetime supervision for sex offenders, and mandatory life imprisonment for second-time offenders. Furthermore, H.R. 1104 removes any statute of limitations and opportunity for pretrial release for crimes of child abduction and sex offenses.

Those who abduct children are often serial offenders who have already been convicted of similar offenses. Sex offenders and child molesters are four times more likely than other violent criminals to recommit their crimes. This number demands attention, especially in light of the fact that a single child molester, on average, destroys the lives of over 100 children. In response, H.R. 1104 provides judges with the discretion to impose lifetime supervision upon such offenders.

The bill also fights against an industry supporting one of the fastest growing areas of international criminal activity. The sex tourism industry obtains its victims through kidnapping and trafficking of women and children. These women and children are then

forced into prostitution. H.R. 1104 works to end this.

This legislation also authorizes increased support through the National Center for Missing and Exploited Children, the Nation's resource center for child protection. The center assists in the recovery of missing children and raises public awareness about ways to protect children from abduction, molestation, and sexual exploitation.

Some have called for a stand-alone AMBER bill instead of the comprehensive approach we have taken to address the problem of child abductions in this country. I note with interest that the DCCC, the political wing of the House Democrats, have labeled provisions of the bill I have just outlined as controversial.

I do not think these provisions are controversial. Neither do the Department of Justice, the National Center for Missing and Exploited Children, or the 390 Members of Congress that voted for this bill last year. Mark Klaas, father of kidnap and murder victim Polly Klaas, supports us. Mr. Klaas said, ``I'm behind what Mr. Sensenbrenner's doing. I like the idea of a 2-strike law for people who are committing sexual offenses against children. And what it says is that if somebody does that, they are going to spend the rest of their miserable life in prison if they are convicted a second time. I see no problem with putting it out on the floor and seeing where people fall on it.''

Those who say we need a stand-alone AMBER bill on the President's desk today do not understand the actual impact of such a bill. The fact is that much of the stand-alone AMBER bill has already been implemented and is in place right now.

The stand-alone AMBER bill calls for a national coordinator. On October 2, 2002, President Bush directed the Attorney General to designate a Justice Department officer to serve as AMBER Alert coordinator to help expand the AMBER Alert system nationwide. Assistant Attorney General Deborah J. Daniels was designated as that coordinator and for almost 6 months has been working to assist State and local officials with developing and enhancing AMBER plans and promoting statewide and regional AMBER coordination programs ever since.

The Departments of Justice and Transportation already have $12.5 million in the bank today, ready to respond and spend on AMBER programs.

Furthermore, in a March 18, 2003, letter to me, the Department of Justice stated that it has not been hampered in its efforts to implement an AMBER Alert program because of any legislation that has yet to be signed into law. Stand-alone AMBER legislation, in the words of the Department of Justice and their statement of administration policy, merely codifies current practice.

This Congress must do better than codifying current practice, and this bill does that. Let us be clear, if a stand-alone AMBER Alert were enacted into law today, nothing that is already being done would change. This bill merely supplants the Department of Justice general authorization with a specific authorization. It may make some feel good, but it will not help protect America's children from kidnapping and sexual abuse in the first place.

Federal money is in the pipeline for AMBER programs and is ready to be spent. A national coordinator has already been appointed. What we need now is a comprehensive legislative package that will crack down on child abductors, build and expand on the work of the National Center for Missing and Exploited Children, and give Federal authorities additional tools to prevent and to solve these horrific crimes.

I urge my colleagues to ignore the political rhetoric and to protect America's children by supporting this bipartisan and noncontroversial child protection legislation.

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

Mr. Chairman, I yield 2 minutes to the gentlewoman from Washington (Ms. Dunn), the author of the stand-alone AMBER Alert bill on the House side.

Mr. Chairman, I yield 3 minutes to the gentleman from North Carolina (Mr. Coble), the chairman of the Subcommittee on Crime, Terrorism and Homeland Security.

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

Mr. Chairman, I yield myself 15 seconds just to point out that neither the Senate-passed stand-alone AMBER Alert bill nor its companions in the House establish a mandatory national AMBER system. All of the bills are voluntary. The States can apply for grants. It is my hope that they will do so.

Mr. Chairman, I yield 2 minutes to the gentleman from Michigan (Mr. Upton).

Mr. Chairman, I yield 3 minutes to the gentleman from Wisconsin (Mr. Green).

Mr. Chairman, I yield 2 minutes to the gentleman from Utah (Mr. Cannon).

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

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, on the other side of the aisle some Members have come up and stated that we ought to bust this bill apart and strip out all of the non-AMBER Alert-related issues. That would be a big mistake. It would be a huge mistake because most of these provisions are designed to prevent kidnappings and molestations from happening in the first place.

I support AMBER Alert. It is important once a kidnapping takes place that the police and the public and the news media know about that kidnapping so that an alert public can hopefully spot the abducted child and return the child to his or her parents.

But even more important in my opinion is to prevent the kidnappings and the molestations in the first place because if that ever happens, those people's lives are scorched for life.

In H.R. 1104 there are a number of provisions. I do not think they are controversial, but let me enumerate them. It provides the judge with the discretion to extend the supervision of a released child sex offender up to a maximum of life, eliminates the statute of limitations for child abductions and sex crimes, denies pretrial release for child rapists and child abductors, requires a mandatory sentence of life imprisonment for twice-convicted child sex offenders, reauthorizes and doubles the annual grant to the National Center for Missing and Exploited Children to $20 million a year through fiscal 2005, mandates a minimum 20-year prison sentence for the kidnapping of a person under the age of 18 by a nonfamily member, authorizes COPS funding for a sex offender apprehension program, adds four new wiretap predicates that relate to sexual exploitation crimes against children.

We give these predicates so that the police will have the same authority to seek court wiretap authority when someone is using the Internet to try to entice children that the police presently have in cases of organized crime, international terrorism, or drug trafficking.

The bill facilitates the prevention of international parental kidnapping by adding an attempt to liability to the statute defining that offense, and it punishes persons who travel to foreign countries to engage in illegal sexual relations with minors and criminalizes the actions of sex tourism operators.

These are provisions that the opponents of this bill want to strip out. They are important provisions. They ought to be the law of the land, and we ought to pass H.R. 1104 intact today to make them the law of the land.

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

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I believe the gentleman's amendment is a very constructive amendment. I urge the committee to adopt it.

Mr. Chairman, I compliment the gentleman from Florida for proposing an excellent amendment. Let me say I am really puzzled that my friend the gentleman from Virginia (Mr. Scott) is opposing this amendment.

Back in 1992, there was a citizen of Los Angeles County named Rodney King that was beaten up by a bunch of police officers. Those police officers were tried and convicted of a civil rights violation in a Federal Court.

The judge there had a downward departure from the sentence that Police Officer Koon would have received, which would have been 70 to 87 months under the sentencing guidelines. The District Court said, as a result of the widespread publicity and emotional outrage which would have surrounded this case, the officers were particularly likely to be targets of abuse in prison, had they been burdened by having been subjected to successive State and Federal prosecutions. So Mr. Koon only got 30 months in prison, when the guidelines required 70 to 87 months in prison.

Now, the Congressional Black Caucus sent a letter to Attorney General Janet Reno; and that was reported in the August 13, 1993, edition of the Los Angeles Times. The Black Caucus, the gentlewoman from California (Ms. Waters), and 24 other members of the CBC wrote the Attorney General asking that this be appealed.

The government did appeal that sentence and won its case in the Appeals Court, and the Appeals Court held that there should be a de novo review of the sentence. Then there was an appeal to the United States Supreme Court which reversed the Appeals Court and said that the only time a district judge's departure from sentencing guidelines could be reviewed and reversed was if there was an abuse of discretion.

There is a provision in the amendment offered by the gentleman from Florida (Mr. Feeney) that does precisely what the Congressional Black Caucus asked for almost 10 years ago, and that is to give appeals courts de novo review over sentencing guidelines.

So I am puzzled at the gentleman from Virginia's opposition. We are doing what he asked for, but maybe 10 years too late.

Now, I think it is outrageous that one out of every five cases of those convicted of sexually abusing a child or sexually exploiting a child through child pornography have received a downward departure from the sentencing guidelines. The law says this is supposed to be rare, but, instead, a 20 percent downward departure rate is not rare.

Mr. Chairman, I think that the amendment that has been offered by the gentleman from Florida plugs this loophole. It ought to be passed.

Mr. Chairman, I include for the Record the August 6, 1993, letter from

the Congressional Black Caucus to the Attorney General of the United States.

House of Representatives,

Washington, DC, August 6, 1993.

Hon. Janet Reno,

Attorney General, Department of Justice, Washington, DC.

Dear Attorney General Reno: As members of the Congressional

Black Caucus, we are writing to you because of our concern

about the sentencing of Officer Laurence Powell and Sergeant

Stacey Koon by Judge John Davies in the Rodney King civil

rights case.

We are troubled that the sentence for the crime was reduced

to 30 months upon the court's consideration of mitigating

facts. Such a reduction for mitigation factors may be

appropriate in other circumstances. However, we feel that the

dependents' special status as police officers, with special

duties owned to the public, should have mitigated against

such a significant reduction.

As you well know, the maximum possible penalty was ten

years and fines of up to $250,000. Your federal prosecutors

were asking for seven to nine years. Our federal sentencing

guidelines recommended minimum sentences in a range of four

to seven years in prison.

Instead, Judge John Davies made broad use of subjective

factors. He stated that he read only letters addressed to him

from the friends and families of Officer Powell and Sergeant

Koon. He argued that much of the violence visited on Rodney

King was justified by King's own actions. However, these

officers were convicted on charges of violating Rodney King's

civil rights. We believe these mitigating factors did not

justify so large a reduction given the defendant's special

responsibilities as police officers.

In addition, Judge Davies did not afford proper weight to

the racist comments made over police radio by those convicted

on the night of the beating in discounting race as a

motivation for the beating. He similarly failed to take into

account the remarkable lack of remorse shown by Officer

Powell and Sergeant Koon since their conviction.

People of good will all over this country and of all races

were heartened when Officer Powell and Sergeant Koon were

convicted by a jury of their peers, a verdict made possible

by the Justice Department's resolve to file civil rights

charges and by the phenonemal performance of federal

prosecutors. With these severely reduced sentences, however,

we are sending a mixed message. Are police officers going to

be held responsible for excessive use of force or not?

We think what has been lost, in all this, is the police

officers have an enhanced responsibility to upheld the law.

Notwithstanding Judge Davies' authority to modify the

sentencing guidelines, most experts agreed that the minimum

four to seven years sentence should have been followed in

this case.

We realize that the trial judge is afforded sufficient

latitude in sentencing, but we urge the Department of Justice

to appeal these sentences. We need to reexamine these

sentences so that justice can finally be done in this

difficult, painful case. Only then can we begin to put this

behind us.

Sincerely,

Maxine Waters, Eva M. Clayton, Sanford Bishop, Major R.

Owens, Eddie Bernice Johnson, Walter Tucker, Floyd H.

Flake, William Clay, Albert R. Wynn, Charles B. Rangel,

Carrie P. Meek, William J. Jefferson, James E. Clyburn,

Donald M. Payne, Earl Hilliard, Alcee Hastings, Bennie

M. Thompson, Kweisi Mfume, Glee Fields, Louis Stokes,

Cynthia McKinney, Melvin L. Watt, John Lewis, Ronald V.

Dellums, Corrine Brown.

Mr. Chairman, I believe this amendment is a very good amendment. This program is a very important one. It is too important to let go by the wayside. I believe we should take this opportunity to reauthorize it in the context of this bill and would urge the committee to support the gentleman's amendment.

Mr. Chairman, this is also a very good amendment. I commend the gentleman from Florida for drafting and offering it, and I would urge the Committee to adopt it.

Mr. Chairman, I believe this amendment is a very necessary amendment, if I could just take a minute to explain why.

In 1993, the National Child Protection Act was passed to provide a process for background checks for volunteers. It did not get up and running.

Additional legislation to improve the process was enacted through the Volunteers for Children Act of 1998. It still is not up and running.

What the gentleman from Texas is proposing is to tell the Justice Department that they have 120 days to tell us why these programs are not up and running, what is needed to fix them, and to get on with the background check system so that those who do volunteer to work not only with children, but also the disabled and the elderly, can be checked out to see if altruism is not their sole motivation for working with these groups of people.

I think that this is a very good amendment, and I hope that it would be adopted.

Mr. Chairman, I thank the gentleman for yielding.

This is also a very good amendment. It broadens the tools that law enforcement can use to track down missing children through better forensic investigation. I commend the gentleman from Texas for offering this amendment, and I hope that the committee adopts it.

Mr. Chairman, I also believe that this is a very constructive amendment, and I commend the gentleman from Puerto Rico for offering it; and I hope that it is adopted.

Let me say that one of the first things I did when I came to Congress was I helped pass the Missing Children's Act which was in response to the abduction and gruesome murder of Adam Walsh, whose father, John Walsh, has obtained quite a bit of fame in being an advocate for missing and exploited children.

The Code Adam proposal has been very successful when privately implemented in Wal-Mart stores around the country, and I think that having a Code Adam alert system in place nationwide for all public buildings will significantly improve the chance of recovering children who might be abducted in a shopping mall or some other public building. I think the gentleman from Puerto Rico has done the children of this country a great service by offering this amendment, and I hope that it is adopted.

Mr. Chairman, I thank the gentleman for yielding time to me.

Mr. Chairman, I support this amendment as an important step to stop the exploitation of our children. This amendment is directly connected to the abduction of children, since children are abducted and sold into the sex industry for both pornography and for prostitution.

The amendment addresses growing challenges to the government's ability to prosecute child pornographers. It also includes a provision to address child pornography that is produced overseas to be distributed in the United States. The exploitation of any child is unacceptable, and the United States must take affirmative steps to prevent this exploitation wherever it occurs.

The amendment is essentially the same as the Child Obscenity and Pornography Prevention Act, which passed the House in the last Congress by a vote of 413 to 8. This legislation had strong bipartisan support. Congress understood then what has become even more clear now, that this legislation ensures the enforceability of existing child pornography laws.

During the 1990s, advances in computer technology threatened the government's ability to protect real children. Congress attempted to address this concern in 1996 with the Child Pornography Prevention Act, parts of which were subsequently struck down by the Supreme Court in the Free Speech Coalition decision.

Regardless of whether we agree or disagree with the court's decision, we must now deal with its consequences. Since that decision, defendants in child pornography cases have routinely claimed that the depictions of child pornography could be virtual, thus requiring the government to prove first that the depicted image is a real person.

The mere existence of computer technology that creates virtual depictions which are indistinguishable from depictions of actual children allows defendants who possess images of real children to escape prosecution. This Congress has an obligation to correct this absurd permutation in the law.

Given the prevalence of the Internet, we absolutely cannot protect our children if prosecutors must first complete

the almost impossible task of identifying the children depicted in child pornography. Unless this amendment is adopted, the Supreme Court's decision will effectively legalize all child pornography by throwing an insurmountable burden in the face of the prosecution.

I urge my colleagues to support this critical amendment.

Mr. Speaker, I demand a recorded vote.

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

Mr. Chairman, I rise in opposition to H.R. 1104. I would like to be able to support the AMBER Alert part of the bill, but that bipartisan, noncontroversial part of the bill has been buried behind literally a host of controversial sound-bite-based provisions which have passed the House several times, only to die in the Senate.

The AMBER Alert portion of the bill would codify a program of grants and assistance to States and localities to establish a nationwide system of communications and alerts to assist in locating and returning missing and abducted children. The system has proven itself on the State level and would help save lives and additional heartache on a national basis.

The AMBER Alert bill has already passed the Senate unanimously and could pass unanimously in the House, I believe, absent the controversial sound bites that have been tacked on.

Last Congress, many of us warned the majority that coupling the AMBER Alert bill with controversial sound bites would mean that neither the AMBER Alert nor the sound bites would be passed, but the House passed the same kind of omnibus bill anyway; and, as expected, the whole thing died in the Senate. Yet, here we are again facing the same misguided strategy and this time again with even more reasons for the Senate to reject the bill which the AMBER Alert bill is buried in. Again, we have to protest the strategy that will again defeat the AMBER Alert system and again defeat the sound bites as well.

Mr. Chairman, I think the Senate has chosen not to consider many of the controversial items hitchhiking on the AMBER Alert bill for good reasons: more death penalties, at a time when we know the death penalty has problems; more mandatory minimums, two strikes and you are out. We are authorizing FBI wiretaps for behavior that is not even a crime; pretrial detention, lifetime supervision, and removing the statute of limitations on crimes such as adults crossing State lines to engage in consensual sex that would be a crime in the home State. I would just remind Members that any kind of sex outside of marriage is a crime in Virginia.

Virtually all of the crimes described in the bill are already crimes with significant penalties. Others have already passed the House in separate bills and are still pending in the Senate, as they have been for the last 6 years.

It is wrong to hijack the AMBER Alert bill to try to pass these things again. It will not help AMBER Alert, and it will not help pass the extraneous provisions.

It is true that the President has not waited for Congress to pass an AMBER Alert bill and has, by executive order, implemented many of the provisions of the bill. But the passage of AMBER Alert is still necessary to make the program permanent and to increase the funding of the program.

Mr. Chairman, we have letters from the National Association of Police Organizations, and I will just read two paragraphs from it:

``On behalf of the National Association of Police Organizations, representing 230,000 rank and file police officers from across the United States, I would applaud your valiant efforts in calling for an immediate passage of stand-alone AMBER Alert legislation. The recent successful recovery of Elizabeth Smart exemplifies the power of an informed public.

``In this light, legislation that will greatly enhance recovery abilities should not be tied down with additional controversial provisions and political wrangling. The Senate quickly passed S. 221 92 to nothing. Like other child abduction bills, H.R. 412 and S. 121 enjoy broad bipartisan support.''

We have other letters asking for passage of a stand-alone AMBER Alert bill from the Edward, Lois and Elizabeth Smart family and from the Polly Klaas Foundation. I would ask that we defeat the bill and take up H.R. 412, the stand-alone AMBER Alert bill.

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

Mr. Chairman, I yield 6 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Chairman, could the Chair advise us as to the amount of time remaining on both sides?

Mr. Chairman, I yield 5 minutes to the gentleman from North Carolina (Mr. Watt).

Mr. Chairman, I ask unanimous consent to yield the balance of my time to the gentleman from Illinois (Mr. Davis) for purposes of control.

Yes, Mr. Chairman.

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

This is one of the reasons why it is difficult to consider legislation on the floor that had not been considered by committee. Reading the legislation, it appears that they have defined things that are obscene and, if that is the case, the whole site can be busted for obscenity. If it is not obscene, I am not sure that the amendment even applies. Adding ``misleading'' will just add complications to the prosecution because if we can prosecute for the obscenity, we do not have to get into the question of whether the title was misleading or not. We have constitutional implications with this because ``misleading'' may apply to adults as well as children.

There have been no hearings on this to my knowledge and certainly no committee consideration of this. I would point out that if the exemption on the bill, if we have a sexual implication in the name of the Web site, that might cause as many problems as it does solutions because it would make it easier to find the pornographic and obscene sites.

The AMBER alert bill ought to be passed by itself. We ought not be complicated with amendments such as this that have not been considered on the floor. So I would hope we would defeat the amendment, take the AMBER alert portion of the bill by itself so that that could be passed and considered, and deal with this kind of a measure in committee where we can deliberate and get all the fact and implications.

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

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

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

In closing, I would like to say that this bill has significant constitutional implications. I include for the Record a letter from Artist Empowerment Coalition in opposition to the amendment.

Artist Empowerment Coalition,

New York, NY, March 26, 2003.

Honorable Member,

House Committee on Judiciary,

Washington, DC.

Dear Member: The Artist Empowerment Coalition (AEC)

strongly opposes the language in Section 108 of the Amber

Bill, which refers to MISLEADING DOMAIN NAMES ON THE

INTERNET. The AEC represents a nationwide coalition of

artists, songwriters, producers and industry executives. On

behalf of the coalition, we ask that you oppose this

amendment and prevent its inclusion in the legislation. The

impact of its passage would be much broader and more harmful

than the intent in our view, for the following reasons:

1. It is the artists' 1st Amendment right to express

themselves creatively on the web or otherwise.

2. Recording artists of all genres have website domain

names, which vary in origin and may reflect simply their

names, titles, who they are and/or what they represent

musically.

3. In some instances, an artists website content can

include language and lyrics which are part of their overall

body of work.

4. The content of the website and their creative expression

is not and cannot always be reflected within the domain name.

5. Under Section 108 of this proposed amendment, content of

an artists' website, judged subjectively, may be deemed

``obscene'' and therefore, based upon absence of labeling to

that effect, exposes an artist to punishment under the law

which can include, but is not limited to imprisonment.

6. The domain name selection, and its use on the part of an

artist, is not, in this case, ``knowingly misleading,''

rather it is selected based upon an artists rights under the

1st Amendment of the Constitution.

Further, the AEC believes artists should have the right to

use domain names, which are not subject to ``labeling'' and

third party interpretations. We believe it is wrong to imply

that an artist intends to ``knowingly deceive'' a person or

persons simply by using his or her name, for instance, as the

domain name rather than a description of the website

contents.

While the AEC supports efforts to protect children from

kidnapping and efforts to apprehend criminals, we oppose this

and any measure, which wrongly makes criminals of the

creative community, hinders the creative process and violates

creative rights under the law. Please vote ``NO'' on this

bill as amended.

Sincerely,

Tracey Walker,

Director of Public Affairs.

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

Mr. Chairman, I claim the time in opposition.

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

Mr. Chairman, this amendment would have the effect of turning the sentencing guidelines into mandatory sentences in the cases it affects. We have not had hearings or markups on this matter; and this is not the way we should amend the sentencing guidelines, without thought or consideration.

The purpose of the sentencing guidelines is to provide intelligent consistency in sentencing, considering each sentence within the overall framework of other sentences, and ensuring that more serious crimes get more serious punishment. That is impossible when you just take one crime at a time outside of that context with a floor amendment such as this.

The fact is, it makes no sense to have people with different degrees of criminality getting equal sentences or people with equal degrees of criminality getting vastly different sentences.

The evidence is that the guidelines are operating the way they are supposed to. About 85 percent of the sentences are either within the guideline range or outside of the guidelines at the request of the prosecution.

The sentencing commission should retain the appropriate discretion, since that discretion has been essentially taken away from judges. If we want the commission to look at this specific problem of downward departures in these cases, we should direct the sentencing commission to do just that and not take it upon ourselves to do it all by ourselves in a vacuum.

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

Mr. Chairman, I reserve the balance of my time, and reserve the right to close.

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

Mr. Chairman, when you ask for the courts to review it, that is so it can be considered in the courts with all the evidence, not in the political branch. It is better to leave it to the sentencing commission and the courts than to floor amendments in the House of Representatives.

If this is such a good idea, then let us do it through the regular order. Let us have some hearings, subcommittee markup, committee markup, and then we can slowly and deliberately consider such an amendment.

The purpose of the sentencing commission is to get away from the floor amendments and the sound bites so you can have intelligent sentencing. We have had situations where you have had sentences that are way out of proportion to crimes that are just as serious, or less serious, totally out of context. That is why we try to get away from it, so that serious crimes get serious punishment, lesser crimes get lesser punishment.

That is the purpose of the sentencing commission. You cannot do that with floor amendments in the House of Representatives. That is why we would hope this amendment could be defeated. We could get a clean Amber Alert bill passed so we can get that enacted and not have to get bogged down in consideration of amendments such as this.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I would point out that this is going in the right direction. We need to work on this as quickly as possible, in this bill or outside of this bill. I think it is a good idea, and I am in support of the amendment.

Mr. Chairman, I seek time in opposition.

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

Mr. Chairman, this amendment is designed as a fix for last year's decision in Ashcroft versus Free Speech Coalition. The problem with the amendment is that it has the same problems as the law that was struck down. The Ashcroft case held that sale or possession of non-obscene computer-generated material depicting child-like characters engaged in explicit sexual activities does not constitute a crime. This bill says it is a crime, just like the law that was struck down.

Child pornography and object are despicable and illegal and can and are banned and prosecuted. These crimes and their severe punishments are left intact by the Ashcroft decision. What the court struck down was the criminalization of computer-generated and other depictions of children, which is not obscene, in undesirable, including sexual, situations where no child was actually involved in making the material.

We all see pornography as despicable, period. But under our laws, pornography that is not obscene and does not involve real children is just that, pornography. Whether we like it or not, the Supreme Court has told us that pornography is not illegal. It is a category of speech that is despicable but not illegal.

While pornography is legal, child pornography is illegal. But to constitute child pornography, the Supreme Court has told us that a child has to be involved in the production. Virtual computer-generated images, therefore, unless they are obscene, are not illegal.

The law called into question in Ashcroft was a law enacted in 1996. The problem the court found with the law was that, while it prohibited images that constituted child pornography, it also prohibited images that did not constitute child pornography, because actual children were not involved in the production.

The court made it clear that protected speech may not be banned as a means to ban unprotected speech. This would turn the first amendment upside down.

Proponents of the bill believe that the court left intact or left open the question of whether government can establish a sufficiently compelling State interest to justify criminalization of computer- generated images that are not obscene and do not involve real children. However, the court cited in its decision New York versus Ferber from 1992 when it said, virtual images record no crime and creates no victims by its production and therefore are legal.

Proponents also argue that the court did not consider the harm to real children which would occur when, through technological advances, it will become difficult to tell real children from virtual children, thereby allowing real children to be harmed because the government cannot tell the difference for the purpose of bringing prosecution.

But the court did clearly consider that, and stated, and I quote from the decision, ``The government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the government contends, are indistinguishable from the real ones. They are part of the same market and often exchanged. In this way, it is said virtual images promote the trafficking in works produced through the exploitation of real children.''

But then the court says, and I continue quoting, ``The hypothesis is somewhat implausible. If virtual images are identical to illegal child pornography, the illegal images will be driven from the market by indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional computer-generated images would suffice.''

Nor was the court persuaded by the argument that virtual images will make it difficult for the government to prosecute cases. As to that concern, the court said, ``Finally, the government says that the possibility of producing images by using computer imaging makes it difficult for it to prosecute those who produce pornography using real children. Experts, we are told, may have difficulty in saying whether the pictures were made using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images.

``The argument,'' the court said, ``in essence is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the first amendment upside down. The government may not suppress lawful speech as a means to suppress unlawful speech.''

Finally, Mr. Chairman, the government suggests that because the court determined that it did not decide whether an affirmative defense could save an otherwise unconstitutional law, it left open that possibility. That may be technically true, but listen to what the court said: ``In order to force this objection, the government would have us read the CPPA as not a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the government relies on an affirmative defense under the statute which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children.

``The government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech was not unlawful. The affirmative defense applies only after the prosecution has begun, and the speaker must himself prove, on the pain of felony conviction, that his conduct falls within the affirmative defense.

``In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity or even the existence of the actors. If the evidentiary issue is a serious problem for the government, as it asserts, it will be at least as difficult for the innocent possessor.''

This statute, however, Mr. Chairman, by its very words, makes illegal what the court said was legal. Five Justices joined in the majority opinion. One concurred, one concurred in part and dissented in part, two dissented.

With five Justices, all of whom are still on the court, agreeing with the whole decision and only three dissenting in any part at all, this is not a close decision with wavering members.

So, Mr. Chairman, I think we should avoid the necessity of the court's telling us again that we cannot prosecute child pornography unless real children were, in fact, involved in the production of the material or unless they are otherwise legally obscene.

Finally, Mr. Chairman, we should note the subsequent action in the Ashcroft case. The trial court on February 7, just a few weeks ago, ordered attorney's fees to the plaintiff on the grounds that the government's defense of the statute was not substantially justified. This is essentially the same statute. It says that virtual child images can be made illegal. The court has said that virtual images cannot be made illegal. Those of us who are familiar with our system of government recognize that the same ruling by the same Supreme Court will find this bill unconstitutional and unenforceable; and, therefore, the amendment should be opposed.

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

Mr. Chairman, I yield 2 minutes to the gentleman from North Dakota (Mr. Pomeroy).

Mr. Chairman, I yield myself the balance of my time.

The Supreme Court told us that virtual images produced without real children cannot be prohibited unless they are obscene. The bright line is a person has got to use real children for it to be illegal. This bill says that virtual images without using children are illegal. The same Supreme Court will make the same decision.

This amendment is unconstitutional and ought to be rejected.

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

Mr. President, I rise, along with Senator Grassley, Senator Corzine, and Senator Gregg to introduce the Identity Theft Prevention Act.

This bill addresses the growing tide of identity theft cases by requiring banks, credit bureaus, and other financial institutions to take some practical steps to protect sensitive personal information.

What is identity theft? Identity theft occurs when one person uses another person's Social Security number, birth date, driver's license number, or other identifying information to obtain credit cards, car loans, phone plans or other services in the victim's name.

The criminal literally assumes the identity of the victim for illicit gain.

Identity theft has become the number one white collar crime of the new millennium, and Congress needs to make a major effort to protect Americans' personal information.

Hundreds of thousands of Americans are victimized by identity theft each year.

The personal losses as a result of these crimes are major. The average financial loss from an identity theft case is $17,000 and it takes a typical victim 18 months to restore his or her good credit.

In some cases, victims are falsely saddled with criminal records or are denied loans and other valuable financial services.

Identity theft is frighteningly easy to commit. One of my constituents, Kim Bradbury of Castro Valley, knows this too well. Kim reported that an identity thief obtained a credit card in her name through the Internet in less than 60 seconds. The false application only had her Social Security number and birth date correct.

Kim only found out she was an identity theft victim when a representative of a telemarketing company called her at home while she was feeding her one-year child. The representative told her that someone with a different address had applied for a credit card in Kim's name.

In Kim's case, it appears that her Social Security number was stolen by a fellow employee who also had stolen the identities of several dozen company employees. The thief ultimately stole over $100,000 in merchandise, including 20 cell phone accounts, via identity fraud.

All indicators suggest that the crime continues to grow at an alarming rate.

Just two months ago, Federal prosecutors announced the largest single identity theft case in U.S. history. Three individuals allegedly sold the credit and personal information of 30,000 people.

At one national credit reporting agency, consumers requested 53 percent more fraud alerts in fiscal year 2001 than fiscal year 2000.

As of December 2001, the Federal Trade Commission, FTC, Identity Theft Clearinghouse averaged more than 3,000 call-ins per week, a seven-fold increase since the clearinghouse began operation in November 1999.

The Identity Theft Prevention Act offers a series of practical steps to cut-off criminal access to sensitive consumer data.

No. 1, Credit card number truncation on receipts: first, the Identity Theft Prevention Act would require all new credit-card machines to truncate any credit card number printed on a customer receipt.

Thus, when a store gives a customer a receipt from a credit card purchase, only the last five digits of the credit card number will show.

This prevents identity thieves from stealing credit card numbers by retrieving discarded receipts.

Existing machines would have to be reprogrammed to truncate credit card numbers on receipts within four years after enactment of the legislation.

No. 2, Fraud alerts: the bill would give the Federal Trade Commission the authority to impose a fine on credit issuers who issue new credit to identity thieves despite the presence of a fraud alert on the consumer's credit file.

Too many credit card issuers are granting new cards without adequately verifying the identity of the applicant. Putting some teeth into fraud alerts will curb irresponsible granting of credit.

No. 3, Free credit reports: third, the legislation would entitle each consumer to one free credit report per year. Currently six States, Colorado, Georgia, Maryland, Massachusetts, New Jersey, and Vermont, have laws entitling consumers to one free credit report per year from the national credit bureaus.

According to identity theft victim advocates, identity theft is detected much earlier if consumers actively monitor their credit files. The cost of credit reports is a major obstacle to their use by consumers.

No. 4, Change of address: finally, the bill requires a credit card company to notify consumers when an additional credit card is requested on an existing credit account within 30 days of an address change request.

This provision addresses a common method of identity fraud where a criminal steals an individual's credit card number, and then obtains a duplicate card by informing the issuer of a change of address.

The Identity Theft Prevention Act requires financial institutions to implement needed precautions to prevent identity fraud and protect a person's good name.

Verifying a credit applicant's address, complying with ``fraud alerts'', and truncating credit numbers on receipts are all measures that will make it harder for criminals to engage in identity fraud.

It is appropriate and necessary for financial institutions to take these steps. These companies have a responsibility to prevent fraudsters from using their services to harm the good name of other citizens.

Morever, in this complex, information-driven society, consumers simply can't protect their good name on their own.

I strongly believe this legislation will provide desperately needed tools to combat identity theft, and I look forward to working with my colleagues to secure its passage.

I ask unanimous consent that the text of this legislation be printed in the Record.

Mr. President, I rise today to introduce this bill with Senator Harry Reid to increase the maximum loan cancellation amount available to credentialed teachers from $5,000 to $10,000.

Educational research is clear: the single most important contributor to raising student achievement is having well-trained, high-caliber teachers in the classroom. And yet, far too many of our Nations' students are being taught by teachers who are not fully credentialed.

This is especially true in low-income communities, where 22 percent of the teachers do not have credentials, more than 10 times the rate in wealthy communities.

Because good teachers can make such a positive difference in the classroom, the ``No Child Left Behind Act,'' signed by President Bush last year, requires States to ensure that all teachers in our public schools are ``highly qualified'' by the 2005-2006 school year. This benchmark, which I believe was long overdue, is one that I applaud and was pleased to support last Congress.

And while we have taken a bold first step by committing that our children will receive quality education from a licensed teacher, our work is far from over.

We must now strengthen our commitment by helping States look for new ways to reach prospective teachers and build quality into their teacher preparation and development programs.

Nationwide, it is estimated that approximately 2 million new teachers will need to be hired by 2009.

This statistic, combined with the reality that roughly 200,000 veteran teachers will need to get their teaching certificate by the 2005 school year or lose their ability to teach, makes it clear that States have an ambitious requirement to fulfill in a short amount of time.

But many States and school districts argue that they lack the resources necessary to fulfill these mandates on their own.

The gravity of this problem is vividly depicted in California, where at least 300,000 new teachers will need to be hired and credentialed by 2008 to replace retirees and to accommodate the projected population growth at a time when the State is experiencing a drastic budget shortfall. All of this must happen during a time when the State is experiencing drastic budget shortfalls. The California State Board of Education projects that all of these changes will cost $6 billion.

The $6 billion price tag does not include the costs associated with credentialing 32,000 emergency credentialed teachers, which is 11 percent of California's entire workforce, by the 2005 school year. This task alone would cost California $365 million.

And none of these cost-estimates take into account the cost of credentialing teachers in other States with high percentages of the teaching work force not fully credentialed.

While I strongly believe that States need to be held accountable for ensuring that all teachers are fully credentialed. But I also recognize that in order for States to meet this Federal mandate on time, many may need guidance and support from the Federal Government.

This is not just a matter of holding those in the local school district or the local schoolhouse accountable; it is also a question of holding those in positions of public trust from the schoolhouse up to the statehouse, and to the U.S. Capitol, too, accountable for making sure that the job gets done.

I believe that this bill takes a good first step in doing just that by creating a balance between State and Federal accountability and addressing two obstacles confronting school districts as they prepare for the 2005 academic year: lack of incentives to lure teachers into teacher credentialing programs early and lack of resources available to teaching institutions to improve and build upon their credentialing curriculum.

I believe that the Federal Government should recognize the value of having a qualified teacher in a low income classroom by enhancing the loan cancellation benefits of credentialed teachers.

Current law allows teachers to receive up to $5,000 of their student loans to be forgiven in exchange for 5 years of teaching in a low- income school. Unfortunately, few teachers have taken advantage of this program because of the low loan cancellation amount available to them in comparison to the length of service required for eligibility.

To encourage recent graduates of teacher licensure programs to enter and remain in the teaching field, this bill doubles the maximum loan cancellation amount to $10,000 for credentialed teachers teaching for five years in a low income school.

And while uncredentialed teachers would continue to be eligible for loan forgiveness available to all teachers under the current law, the enhanced benefits for uncredentialed teachers will expire on December 31, 2005, just in time for the mandated deadline set for all teachers to be fully licensed.

The second element of my bill authorizes grants to institutions of higher education to create and expand credentialing programs. Funds would be made available to colleges and universities to develop and implement teacher preparation programs including curriculum development that focuses on credentialing teachers.

I strongly believe that teachers desiring to become credentialed should have every resource available to them to do so. These components are meant to complement State programs already available to credentialed teachers, which aim to improve teacher quality and tenure.

To California's credit, since the 1999-2000 school year, 5,000 emergency credentialed teachers have been successfully placed in State- backed teacher preparation programs. And the State is working to create and improve teacher preparation programs that include relevant course work, classroom training, and mentoring by a veteran teacher, with a goal of full credentialing.

But this is not happening in every school district nationwide and it must, States and local school districts should work together to prioritize available funds to set up programs to ensure that every teacher within their district is adequately trained.

States must continue to look for innovative ways to keep qualified teachers in the classroom, especially in low performing school districts, and funnel available Federal funds to local initiatives to get emergency certified teachers into credentialing programs.

We as a Nation must continue to make providing quality education to our children a top priority. Passing legislation is just the first step. With the expected population growth and the need to replace teachers approaching retirement, States must act swiftly and aggressively to ensure that neither children nor teachers are left behind.

I urge my colleagues to join me in cosponsoring this important piece of legislation that would give States and teachers the necessary resources to ensure that every teacher is a ``highly qualified'' teacher. Our Nation's students deserve nothing less.

Mr. President. I rise to reintroduce, along with Senator Judd Gregg, the Social Security Number Misuse Prevention Act. This is critical legislation, especially in light of the increasing number of cases of identity theft.

In fact, the Federal Trade Commission, FTC, this week announced that identity theft is the Nation's top consumer fraud complaint for the third consecutive year.

Last year, this legislation was approved by the Senate Judiciary Committee, and the Finance Committee was set to vote on it as well, but it got entangled in an unrelated, amendment.

It is my hope that Congress will approve this legislation this year, so that we can begin to protect one of the most fundamental rights of all Americans.

I believe all Americans should have the right to: control how their personal identifying information is used. Keep their Social Security number out of the public domain. Limit disclosure by public agencies of personal information; and I also believe that Americans have the right to expect that businesses and government agencies will

protect your personal information held within their databases.

Lately, however, these rights have been seriously compromised by thieves who are stealing American's identity's in record numbers.

Just in the last year, identity theft cases have doubled nationwide. American consumers filed approximately 163,000 identity theft complaints with the FTC in 2002. Fully 43 percent of all the complaints the FTC receives are about identity theft.

My own State, California, has more victims than any other State. The FTC recorded 30,738 identity theft cases last year from California consumers alone.

Senator Gregg and I are reintroducing our Social Security number protection bill because Social Security numbers are the keys thieves use to unlock and take over a person's identity.

Identity thieves use Social Security numbers to: fraudulently obtain credit cards, access existing financial accounts, commit bank fraud, falsely obtain employment and government benefits; and create additional false identification documents, such as drivers' licenses.

Sally Twentyman, for instance, had her identity stolen when a thief rifled through her mail and stole credit card renewal forms.

The thief used her name and Social Security number to make $13,000 in cash advances and to open two additional credit card accounts in her name.

Not surprisingly, reports of Social Security number misuse have risen lockstep with the growth in identity theft.

Allegations of Social Security number fraud have increased by 600 percent over the past several years from 11,000 in 1998 to 73,000 in 2003.

Social Security Number Prevention Act:

The goal of this legislation is straightforward, to get Social Security numbers out of the public domain so that identity thieves can't access the number.

First, this bill prohibits anyone from selling or displaying an individual's Social Security number to the general public without the individual's consent, but does permit legitimate business-to-business and business-to-government uses of the number.

This practice occurs today. A stranger or stalker can buy your Social Security number off the Internet for a few dollars.

In one troubling case, Christopher Jones, a twenty-five-year old employee at the University of North Carolina-Pembroke, stole approximately 3,000 Social Security numbers through his job handing out towels and other equipment at the university gym.

In order to get equipment from Mr. Jones, students had to give him their Social Security numbers. Jones mined these numbers over several months and advertised the Social Security numbers for sale on eBay with an opening bid of $1.00 per number for a block of 1,000 numbers.

One advertisement, for example, read ``100 (one hundred social Security # Numbers Obtain False Credit Cards Idenity Theft I Don't Care Bid Starts at a Dollar a Piece USPS Money Orders only all Different.''

Second, this legislation gives consumers the right to refuse to give out their Social Security numbers to companies that don't really need it.

Companies, however, can still require Social Security numbers for purposes under the Fair Credit Reporting Act, for background checks, if required by law, or if the number is necessary to verify identity or prevent fraud.

Third, this legislation curbs the public display of Social Security numbers on government documents. Specifically, the bill removes Social Security numbers from government checks and driver's licenses.

In addition, the bill prohibits governments entities from displaying Social Security numbers on public records that are posted on the Internet or in electronic media after the effective date of the act.

I don't believe a complete stranger should not be able to get access to my Social Security number from my birth certificate or marriage license, especially just by logging onto the Internet!

Finally, this legislation creates new penalties targeting the misuse of Social Security numbers. Specifically, the bill gives the Social Security Administration the authority to issue civil penalties of up to $5,000 for people who misuse Social Security numbers.

The bill also creates a maximum five year prison sentence for anyone who obtains another person's Social Security number for purpose of locating or identifying that individual with the intent to physically harm that person.

This legislation is fundamental to protecting the identities of American citizens.

I look forward to working with Senator Gregg to secure its passage this year, and I ask unanimous consent that the text of this legislation be printed in the Record.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield such time as he may consume to the gentleman from Wisconsin (Mr. Sensenbrenner), chairman of the Committee on the Judiciary.

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

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

Mr. Chairman, this amendment addresses the April 16, 2002, Supreme Court decision in Ashcroft versus Free

Speech Coalition. That decision struck down in 1996 a law written to combat computer-generated pornography because it was too broad.

The overturning of this law to combat child pornography has emboldened those who would have used children. Regrettably, the prediction of the president of the National Center for Missing and Exploited Children has come true. He said, ``The court's decision will result in the proliferation of child pornography in America unlike anything we have seen in more than 20 years.''

A Government Accounting Office report just 2 weeks ago found that in the weight of the Supreme Court decision, child pornographers now are increasing their presence on the Internet and are engaging in their depraved actions with relative ease. The Internet has proved a useful tool for pedophiles and sex predators as they distribute child pornography, engage in sexually explicit conversations with children, and hunt for victims in chat rooms.

Every parent should know what their children see and do online. Unfortunately, the new playground for child pornographers is the Internet.

Our children are the most vulnerable among us, and we need to protect them. If this amendment becomes law, child pornographers will be a mere click away from a lengthy prison sentence. This amendment increases penalties and provides prosecutors with the tools they need to win convictions against child pornographers, and it responds to the Supreme Court's constitutional concerns by narrowing the definition of child pornography and includes an affirmative defense when real children are not depicted.

This amendment passed the House as separate legislation last year by a vote of 413 to 8, but the Senate failed to act. I hope my colleagues again will support the provisions in this amendment which will reduce child pornography on the Internet.

Mr. Chairman, I insert for the Record the analysis of the constitutionality of this legislation.

Constitutional Analysis of the Smith Amendment to H.R. 1104--the

``Child Obscenity and Pornography Prevention Act''

On April 16, 2002, the Supreme Court in Ashcroft v. Free

Speech Coalition, held that two of Federal definitions of

child pornography unconstitutional. Sec. 18 U.S.C.

Sec. 2256(8)(B), defined child pornography to include wholly

computer generated pictures that appear to be of a minor

engaging in sexually explicit conduct. Sec. 18 U.S.C.

Sec. 2256(8)(D), defined child pornography to include a

visual depiction where it is advertised, promoted, or

presented, to convey the impression that the material

contains a visual depiction of a minor engaging in sexually

explicit conduct.

The Court's decision does not bar Congress from outlawing

virtual child pornography when the prohibition is narrowly-

drawn to promote a compelling government interest. In fact,

the Court in its opinion, expressly left that option open for

Congress. The Court stated: ``We need not decide, however,

whether the Government could impose this burden on a speaker.

Even if an affirmative defense can save a statute from First

Amendment challenge, here the defense is incomplete and

insufficient, even on its own terms.'' Justice Thomas,

concurring, stated that the ``Court does leave open the

possibility that a more complete affirmative defense could

save a statute's constitutionality, see ante, at 1405,

implicitly accepting that some regulation of virtual child

pornography might be constitutional.'' No member of the Court

took exception with his conclusion.

Congress clearly has a compelling interest to protect

children from sexual exploitation. That interest extends to

the prosecution of those who exploit children. These

prosecutions are seriously threatened by the mere possibility

that technology exists to create a depiction of a virtual

child. This possibility allows those who harm real children

to claim that the child pornography they possess does not

contain real children.

Computer technology already exists today to disguise

depictions of real children to make them unidentifiable and

to make depictions of real children appear computer

generated. Furthermore, evidence was presented to the

Congress that the technology may already exist to depict

virtual children to look real and completely

indistinguishable.

Compounding the problem, is the fact that the vast majority

of child pornography prosecutions today involve images

contained on computer hard drives, computer disks, or related

media and that a computer image seized from a child

pornographer is rarely a first-generation product. These

pictures are e-mailed over and over again or scanned in from

photographs of real children being abused and exploited. The

transmission of images over an e-mail system can alter the

image and make it impossible even for an expert to know

whether or not 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 delineation may depend on the quality of

the image scanned and the tools used to scan it.

To prove a child is real will require identifying the

actual child. This is usually an impossible task. The

quandary is that while there is no substantial evidence that

any of the child pornography images being trafficked today

were made in any other way than by the abuse of real

children, technological advances are leading many criminal

defendants to suggest otherwise. These defendants are

claiming that the images they possess are not those of real

children, insisting that the government prove beyond a

reasonable doubt that the images are not computer-generated.

This is not a new defense, but without a narrowly drafted

statute intended to prohibit the use of virtual child

pornography that an ordinary person viewing the depiction

could not distinguish from a depiction of a real child, it

will be impossible for the government to prosecute child

pornography cases involving computer images. Some in the

Court are cognizant that technology may threaten the

Government's compelling state interest of effective

prosecution of those who sexually exploit children and thus

threaten the Government's ability to protect children.

A representative from the Department of Justice testified:

As Justice Thomas noted in his concurring opinion, ``if

technological advances thwart prosecution of `unlawful

speech,' the Government may well have a compelling interest

in barring or otherwise regulating some narrow category of

`lawful speech' in order to enforce effectively laws against

pornography made through the abuse of real children.'' 122 S.

Ct. at 1406-07 (Thomas, J., concurring in the judgment).

Similarly, Justice O'Connor noted in her opinion concurring

in part and dissenting in part that, ``given the rapid pace

of advances in computer-graphics technology, the Government's

concern is reasonable.'' Id. at 1409. Moreover, to avert

serious harms, Congress may rely on reasonable predictive

judgments, even when legislating in an area implicating

freedom of speech. See Turner Broad. Sys. Inc. v. FCC 520

U.S. 180, 210-11 (1997). We believe that Congress has a

strong basis for concluding that the very existence of

sexually explicit computer images that are virtually

indistinguishable from images of real minors engaged in

sexually explicit conduct poses a serious danger to future

prosecutions involving child pornography. Indeed, we already

have some sense of the impact of the Court's decision. The

Ninth Circuit had invalidated the same provisions of law in

1999, and all accounts indicate that the number and scope of

child pornography prosecutions brought by our prosecutors in

the Ninth Circuit has been adversely impacted.

Since the Supreme Court's decision in Free Speech

Coalition, evidence of this growing threat is clear as

defendants in almost every child pornography case contend

that the depictions could be virtual, requiring the

prosecutors to prove that the children depicted are real.

Some of the defense efforts are succeeding. For example,

after Free Speech Coalition, a court granted the defendant's

motion to withdraw a guilty plea and held that the government

must prove beyond a reasonable doubt that the defendant knew

that the images depicted real children.

Moreover, the existence of computer generated images of

child pornography that is indistinguishable from depictions

of real children will bolster the child pornography market

and those who abuse children to produce such pictures. The

majority opinion in Free speech Coalition stated, in dicta,

that ``if virtual images were identical to illegal child

pornography, the illegal images would be driven from the

market by the indistinguishable substitutes.'' Contrary to

that belief, the President and CEO of NCMEC ``believe[s] that

the Court's decision will result in the proliferation of

child pornography in America, unlike anything we have seen in

more than twenty years.'' He concluded that ``as a result of

the Court's decision, thousands of children will be sexually

victimized, most of whom will not report the offense.''

The Court stated that ``[f]ew pornographers would risk

prosecution by abusing real children if fictional,

computerized images would suffice.'' This conclusion is

simply wrong. The individuals who produce, trade, and

exchange child pornography are rarely profit motivated.

Pictures of abuse of real children are sold, but they are

also traded and displayed--they are trophies and signs of

validation for deviant behavior.

While the Supreme Court has certainly opened the door for

the adult entertainment industry to enter the child

pornography market, legalizing virtual child pornography will

not reduce the market for real children. Rather, the result

will be a market that contains both real and virtual children

(as it does now). The only difference is that now child

molesters will be able to hide their abuse with altered or

merely e-mailed photographs of their victims and the market

will no longer be underground but will return to the public

``adult book stores.''

Child pornography--virtual or otherwise--is detrimental to

the nation's most precious and vulnerable asset, our

children. Regardless of the method of its production, child

pornography is used to promote and incite deviant and

dangerous behavior in our society. As the President and CEO

of the NCMEC

testified ``there is compelling evidence that visual

depictions of sexually explicit conduct involving children

cause real physical, emotional and psychological damage not

only to depicted children but also to non-depicted children.

It is just as insidious, whether it is a photographic record

of a child's actual victimization, or a photographic

depiction used as a tool or device to subsequently victimize

other children.''

Sex predators produce, trade, and use child pornography for

several insidious purposes. Pedophiles not only like to

create a permanent record for arousal and gratification, but

also like to trade these pictures with other pedophiles to

validate their actions. Additionally, sex offenders use child

pornography to lower children's inhibitions to make them

believe that such behavior is acceptable and normal. There

are also those who sell it for profit.

Prior to 1982, child pornography lined the shelves of many

``adult'' entertainment stores. This changed after the 1982

Supreme Court's New York v. Ferber decision that found child

pornography was not entitled to First Amendment protection.

In Ferber, the Court found that: ``[i]t is evident beyond the

need for elaboration that a State's interest in `safeguarding

the physical and psychological well-being of a minor' is

`compelling.' '' Further the Court found that: ``[t]he

distribution of photographs and films depicting sexual

activity by juveniles is intrinsically related to the sexual

abuse of children in at least two ways. First, the material

produced are a permanent record of the children's

participation and the harm to the child is exacerbated by

their circulation. Second, the distribution network for child

pornography must be closed if the production of material

which requires the sexual exploitation of children is to be

effectively controlled.''

While child pornography disappeared from bookstores

following Ferber, it did not disappear from existence.'' The

child pornography market merely went underground, but this

underground market was spurred by the advent of the Internet.

Nevertheless, law enforcement had begun to make enormous

strides in the enforcement and prosecution of child

pornography crimes.

Again, the Government has a compelling state interest in

protecting children from those who sexually exploit them

including both child molesters and child pornographers. The

Supreme Court in New York v. Ferber, concluded that ``[t]he

prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing

importance.'' In Osborne v. Ohio, the Court recognized that

this compelling state interest extends to stamping out the

vice of child pornography ``at all levels in the distribution

chain.''

It follows that the Government has a compelling interest to

ensure that the criminal prohibitions against child

pornography remain enforceable and effective. As the Court

stated in Ferber, ``[t]he 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.''

It became apparent in the 1990's that advances in

technology threatened the Government's compelling state

interest in protecting real children through the effective

prosecution of the child pornography laws that cover the

visual depictions of real children. In 1996, the Congress

attempted to address this concern with the Child Pornography

Prevention Act. The 1996 language included a prohibition of

any virtual depictions as well as pictures of youthful-

looking adults. The Supreme Court found the 1996 statutory

language overbroad, and therefore, unconstitutional.

This legislation is constitutional as it narrows the

definition in significant ways and strengthens the

affirmative defense. Furthermore, there is a compelling state

interest for the narrowly drawn prohibition. The Government's

compelling state interest is to protect children from

exploitation. And the protection includes the prosecution of

those who would or do exploit children. The Court gave the

Congress an opportunity to addresses its concerns, and the

Congress has an obligation to do so.

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

Mr. Chairman, I thank the gentleman from North Dakota (Mr. Pomeroy) for his remarks.

Mr. Chairman, may I ask how much time remains on our side.

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Wisconsin (Mr. Green) the vice-chairman of the Subcommittee on Crime, Terrorism and Homeland Security.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Pennsylvania (Ms. Hart), a very active member of the Committee on the Judiciary.

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

Mr. Chairman, I demand a recorded vote; and pending that, I make the point of order that a quorum is not present.

Mr. President, I rise today, along with my good friend, the senior Senator from Iowa, Senator Grassley, to introduce the Illicit Drug Anti-Proliferation Act. This legislation arises out of a hearing Senator Grassley and I held in the Senate Caucus on International Narcotics Control in December 2001 on the proliferation of Ecstasy and other club drugs generally, and the role of some promoters of all-night dance parties, known as ``raves'', in distributing Ecstasy to young people. Our bill provides Federal prosecutors the tools needed to combat the manufacture, distribution or use of any controlled substance at any venue whose purpose is to engage in illegal narcotics activity. Rather than create a new law, our bill merely amends a well-established statute to make clear that anyone who knowingly and intentionally uses their property, or allows another person to use their property, for the purpose of distributing or manufacturing or using illegal drugs can be held accountable, regardless of whether the drug use is ongoing or occurs at a single event.

While my legislation is aimed at the defendant's predatory behavior, regardless of the type of drug or the particular place in which it is being used or distributed, one problem that we are facing currently involves so-called ``club drugs'' and raves. According to a report which the Partnership for a Drug Free America will release in the near future, teens who report attending a rave are seven times more likely to have tried Ecstasy than teens who report not attending a rave. I find this statistic quite troubling.

Despite the conventional wisdom that Ecstasy and other club drugs are ``no big deal,'' a view that even the New York Times Magazine espoused in a cover story, these drugs can have serious consequences, and can even be fatal. Just last month we got some encouraging news: after years of steady increase, Ecstasy use is finally beginning to decrease among teens. That said, the rate of use remains unacceptably high and we still have quite a bit of work to do to counter the widespread misconception that Ecstacy is harmless, fashionable and hip.

At the Drug Caucus hearing, witnesses testified that rogue rave organizers commonly go to great lengths to portray their events as safe so that parents will allow their kids to attend. They advertise their parties as alcohol-free events and some even hire off-duty police officers to patrol outside the venue. But the truth is that some of these raves are drug dens where use of Ecstasy and other ``club drugs'', such as the date rape drugs Rohypnol, GHB and Ketamine, is widespread.

But even as these promoters work to make parents think that their events are safe, they send a different message to kids. Their promotional flyers make clear that drugs are an integral part of the party by prominently featuring terms associated with drug use, such as the letters ``E'' or ``X''--street terms for Ecstasy, or the term ``rollin''', which refers to an Ecstasy high. They are, in effect, promoting Ecstasy along with the rave.

By doing so, unscrupulous promoters get rich as they exploit and endanger kids. Some supplement their profits from the $10 to $50 cover charge to enter the club by selling popular Ecstasy paraphernalia such as baby pacifiers, glow sticks, or mentholated inhalers. And predatory party organizers know that Ecstasy raises the core body temperature and makes the user extremely thirsty, so they sell bottles of water for $5 or $10 apiece. Some even shut off the water faucets so club goers will be forced to buy water or pay admission to enter an air-conditioned ``cool down room.''

After the death of a 17-year-old girl at a rave party in New Orleans in 1998, the Drug Enforcement Administration conducted an assessment of rave activity in that city which showed the close relationship between these parties and club drug overdoses. In a two year period, 52 raves were held at the New Orleans State Palace Theater, during which time approximately 400 teenagers overdosed and were treated at local emergency rooms. Following ``Operation Rave Review'' which resulted in the arrest of several rave promoters and closing the city's largest rave, overdoses and emergency room visits dropped by 90 percent and Ecstasy overdoses were eliminated.

State and local governments have begun to take important steps to crack down on rave promoters who allow their events to be used as havens for illicit drug activity. In Chicago, where Mayor Daley has shown great leadership on this issue, it is a criminal offense to knowingly maintain a place, such as a rave, where controlled substances are used or distributed. Not only the promoter, but also the building owner and building manager can be

charged under Mayor Daley's law. The State of Florida has a similar statute making such activity a felony.

And in Modesto, California, police officers are offering ``rave training classes'' to parents to educate them about the dangers associated with some raves and the club drugs often associated with them.

At the Federal level, there have been four cases in which Federal prosecutors have used the so called ``crack house statute'' or other Federal charges to go after rogue rave promoters. These cases, in Little Rock, AR, Boise, ID, Panama City, FL, and New Orleans, LA, have had mixed results, culminating in two wins, a loss and a draw, suggesting that there may be a need to tailor this Federal statute more precisely to the problem at hand. As a result, last session I proposed legislation which would do just that. I am reintroducing it today and I am pleased to have Senator Grassley once again as the lead cosponsor. I might note that the legislation is also included in the Democratic leadership crime bill.

After I introduced this legislation last year, a great deal of misinformation began circulating about it. I want to make the record clear. Simply stated, my bill provides technical corrections to an existing statute, one which has been on the books for 16 years and is well established.

Critics of my bill have asserted that if the legislation were to become law ``there would be no way that someone could hold a concert and not be liable'' and that the bill ``holds the owners and the promoters responsible for the actions of the patrons.'' That is simply untrue. We know that there will always be certain people who will bring drugs into musical or other events and use them without the knowledge or permission of the promoter or club owner. This is not the type of activity that my bill would address. The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use at their events. In fact, when crafting this legislation, I took steps to ensure that it did not capture such cases. My bill would help in the prosecution of rogue promoters who not only know that there is drug use at their event but also hold the event for the purpose of illegal drug use or distribution. That is quite a high bar.

I ask unanimous consent that a letter from the Coalition of Licensed Beverage Associations, COLBA, be printed at the end of my statement. COLBA, who initially expressed concerns that my bill would make their members liable for the actions of their patrons, has endorsed my legislation because they realized that my bill was not aimed at responsible party promoters.

I am confident that the overwhelming majority of promoters are decent, law abiding people who are going to discourage drug use, or any other illegal activity, at their venues. But there are a few promoters out there who are taking steps to profit from drug activity at their events. Some of these folks actually distribute drugs themselves or have their staff distribute drugs, get kickbacks from drug sales at their events, have thinly veiled drug messages on their promotional flyers, tell their security to ignore drug use or sales, or send patients who need medical attention because of a drug overdose to a hospital across town so that people won't link emergency room visits with their club. What they are doing is illegal under current law. My bill would not change that fact. Let me be clear. Neither current law nor my bill seeks to punish a promoter for the behavior of their patrons. As I mentioned, the underlying crack house statute has been on the books since 1986, and I am unaware of this statute ever being used to prosecute a legitimate business.

The legislation simply amends the current ``crack house statute'' in two minor ways. First, it clarifies that Congress intended for the law to apply not just to ongoing drug distribution operations, but to ``single-event'' activities, such as a party where the promoter sponsors the event with the purpose of distributing Ecstasy or other illegal drugs. After all, a drug dealer can be arrested and prosecuted for selling one bag of drugs, and the government need not show that the dealer is selling day after day, or to multiple sellers. Likewise, the bill clarifies that a ``one-time'' event where the promoter knowingly distributes Ecstasy over the course of an evening, for example, violates the statute the same as a crack house which is in operation over a period of time. Second, the bill makes the law apply to outdoor as well as indoor venues, such as where a rogue rave promoter uses a field to hold a rave for the purpose of distributing a controlled substance. Those are the only changes the bill makes to the crack house statute. It does not give the Federal Government sweeping new powers as the detractors have asserted.

Critics of the bill have also claimed that it would provide a disincentive for promoters to take steps to protect the public health of their patrons including providing water or air conditioned rooms, making sure that there is an ambulance on the premises, etc. That is not my intention. And to underscore that fact, I plan to remove the findings, which is the only place in the bill where these items are mentioned, from the bill. Certainly there are legitimate reasons for selling water, having a room where people can cool down after dancing, or having an ambulance on hand. Clearly, the presence of any of these things is not enough to signify that an event is ``for the purpose of'' drug use.

The reason that I introduced this bill was not to ban dancing, kill the ``rave scene'' or silence electronic music, all things of which I have been accused. Although this legislation grew out of testimony I heard at a number of hearings about the problems identified at raves, the criminal and civil penalties in the bill would also apply to people who promoted any type of event for the purpose of drug use or distribution. If rave promoters and sponsors operate such events as they are so often advertised as places for people to come dance in a safe, drug-free environment then they have nothing to fear from this law. In no way is this bill aimed at stifling any type of music or expression it is only trying to deter illicit drug use and protect kids.

Last year people criticized the bill's title, the ``RAVE Act'', because they thought it was unfairly targeting raves. Although I do not believe that I was unfairly targeting anybody, I have changed the title to the ``Illicit Drug Anti-Proliferation Act of 2003.''

In addition to amending the crack house statute, the legislation also addresses the low penalties for trafficking gamma hydroxybutyric acid, GHB, by directing the United States Sentencing Commission to examine the current penalties and consider increasing them to reflect the seriousness of offenses involving GHB. Currently, GHB penalties are simply too low. In order to get five years for a GHB offense, you have to have more than 13 gallons of the drug, equivalent to 100,000 doses and a street value of about $1 million. According to the DEA, big-time GHB dealers distribute approximately one gallon quantities of the drug, the penalty for which is currently only between 15 and 21 months. These cases simply aren't being prosecuted at the Federal level because the penalties are so low. The Sentencing Commission needs to take a look at this problem and consider raising the penalties for this dangerous drug.

But the answer to the problem of drug use at raves is not simply to prosecute irresponsible rave promoters and those who distribute drugs. There is also a responsibility to raise awareness among parents, teachers, students, coaches, religious leaders, etc. about the dangers of the drugs used and sold at raves. The DEA is already doing some of this through its club drug awareness campaign, where DEA agents are holding conferences with local women legislators to get information out about the dangers of these substances. The legislation provides funds to the DEA to continue this important work. Further, the bill authorizes nearly $6 million for the DEA to hire a Demand Reduction Coordinator in each state who can work with communities following the arrest of a significant local trafficker to reduce the demand for drugs through prevention and treatment programs.

It is the unfortunate truth that some raves are havens for illicit drugs. Enacting the Illicit Drug Anti-Proliferation Act will help to prosecute the promoters who seek to profit from exploiting and endangering young lives and

will take steps to educate youth, parents and other interested adults about the dangers of Ecstasy and other club drugs associated with raves.

I hope that my colleagues will join me and support this legislation.