Federal Internet Law & Policy
An Educational Project

Protect Our Children Act of 2008

Dont be a FOOL; The Law is Not DIY
- 1st Amendment
- Internet Freedom
- Children, Protection
- - COPA
- - CIPA
- - CPPA
- - Child Porn
- - Child Porn, Reporting
- - Protect Act
- - V Chip
- - Deceptive Content
- - Sex Offenders
- - Privacy
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- - Notification
- SPAM Labels
- Taxes
- Reports
- Obscenity
- Annoy
- Good Samaritan Defense
- Notes

In the Fall of 2008, in the middle of the country's ClusterF#@k to the Poor House , Congress took some time out to Think of the Children .

John McCain said on September 24 that he was canceling his appearance on Letterman suspending his campaign in order to respond to the national crisis and that he would not reinstate his campaign until the crisis was properly resolved. Sen. McCain reinstated his campaign on Friday the 26th.

So what National crisis was resolved that let his campaign continue? It couldn't have been the financial crisis, since I am now using my AIG stock as toilet paper.

No, in the middle of our National Economy going flush with executives squirreling vast sums into executive golden parachutes, the crisis which was resolved was who could take credit for Thinking of the Children .

In 2007, both VP wannabe Joe Biden and Prez wannabe John McCain introduced legislation attempting to combat the ever growing problem of child abuse and child pornography. Joe Biden's PROTECT Our Children Act had been considered by the Senate Committee on the Judiciary in April 2008, reported out favorably and placed on the Senate calendar in July 2008. It had 60 cosponsors.

S.1738 PROTECT Our Children Act of 2008
Title: A bill to require the Department of Justice to develop and implement a National Strategy Child Exploitation Prevention and Interdiction, to improve the Internet Crimes Against Children Task Force, to increase resources for regional computer forensic labs, and to make other improvements to increase the ability of law enforcement agencies to investigate and prosecute child predators.
Sponsor: Sen Biden, Joseph R., Jr. [DE] (introduced 6/28/2007) Cosponsors (60)
Related Bills: H.R.3845 , S.519
Latest Major Action: 10/2/2008 Presented to President.

Sen. McCain's Securing Adolescents From Exploitation-Online Act (SAFE Act) had never been considered by a committee, had not seen legislative action, and had only 10 cosponsors.

S.519 Safe Act of 2007
Title: A bill to modernize and expand the reporting requirements relating to child pornography, to expand cooperation in combating child pornography, and for other purposes.
Sponsor: Sen McCain, John [AZ] (introduced 2/7/2007) Cosponsors (10)
Related Bills: H.R.876 , H.R.3791 , S.1738
Latest Major Action: 2/7/2007 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.

Now all that is nice and most Washington fat-cats know that once the calendar closes in on the elections, nothing gets done - the legislative process comes to a standstill. The candidates get brownie points for showing they care by introducing legislation, even if the legislation is bound for nowhere - you can always blame those unamericans-in-the-other-party for it going nowhere, and get a few more brownie points.

But on September 15th, an event occurred which the candidates could not ignore: Obama-supporter- Oprah came out in favor of VP wannabe Joe Biden's PROTECT Our Children Act ! The Oprah Nation took to the streets in support of Biden's bill - and within a week McCain had suspended his campaign and scuttled back to Washington D.C.

Upon McCain's return to Washington, the PROTECT Our Children Act was passed - on the 25th by the Senate, and on the 27th by the House - but this was quite a different PROTECT Our Children Act than the one thrashed about in the Senate Judiciary Hearing many months ago. As the Center for Democracy and Technology notes, "Some in Congress insisted that the core parts of [John McCain's] S. 519 - the "SAFE Act" - be added to [Biden's] S. 1738 before passage." Sec. 2 of John McCain's act , "Reporting Requirements of Electronic Communication Providers and Remote Computing Service Providers," became Title V of Joe Biden's Act , "Securing Adolescents from Online Exploitation" (which had as its first section, Sec. 501 Reporting Requirements of Electronic Communication Providers and Remote Computing Service Providers). One day after the Senate voted on the Biden-McCain SAFE PROTECT Act , with the danger averted, McCain reinstated his campaign.

Upon passage:

President Bush reportedly signed the Biden PROTECT Act into law on Monday October 14 . . . without comment or press release.

Meanwhile, back on the Clusterf@#k, the Center of Democracy and Technology all but lamented, "These provisions should - if the bailout leaves any money to actually spend on law enforcement - really help in the fight against child pornography."

Wheel of Morality , turn turn turn, Tell Us the Lesson We Should Learn: Oprah can get legislation passed even in the midst of a fierce political campaign and the worst economic crisis since the Long Depression of 1873 - now that's political power! That and, even for the noblest cause, the legislative process is nothing short of a sausage factory - be pleased with your bratwurst but don't look too close at how it was made.

Signed into Law with Rep. Wasserman Schultz

PROTECT Act Provisions

In Washington D.C. when legislators want it to look to the American Public that they are doing something - but they either dont know what to do or they dont want to create a new set of red tape regulations - they either create a task force to study the problem or they require an agency to file a report with Congress. The PROTECT Act does both - several times.

Title I

Required Report
Count: 1

In Title I, Section 101 requires the Department of Justice to create a National Strategy for Child Exploitation Prevention and Interdiction which will annually file a report with Congress on DOJ's strategy.

Section 102 requires the formation of the National Internet Crimes Against Children Task Force (ICAC) Program. The ICAC itself already exists. The Juvenile Justice and Delinquency Prevention Act of 1974 authorized and created an ICAC within DOJ, which is described as:

"The Internet Crimes Against Children (ICAC) Task Force Program helps state and local law enforcement agencies develop an effective response to cyber enticement and child pornography cases. This help encompasses forensic and investigative components, training and technical assistance, victim services, and community education. Numerous task forces have been established throughout the nation. " DOJ ICAC Website.

The Section 102 ICAC will consist "of state and local task forces (including at least one ICAC Task Force for each state) to address online enticement of children, child exploitation, and child obscenity and pornography." [CRS Summary] Sections 102 - 107 give details of the work of the new program. The purpose of the ICAC Task Force Program is set forth in Sec. 103:

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

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

(2) conducting proactive and reactive Internet crimes against children investigations;

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

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

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

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

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

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

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

Required Report
Count: 2

$60m is appropriated each year for 5 years for a total of $300m to support title I. Sec. 107. 75% of this appropriation shall be available for grants to the states and local ICACs, which can be used to hire investigators and prosecutors, establish forensic labs, support investigations, conduct education and training programs, and support other related activities. Sec. 106.

DOJ shall Report to Congress within one year on the progress of the ICAC Task Force Program.

Title II

Required Report
Count: 3

Title II recognized the needs to expands DOJ's CSI capabilities by expanding DOJ's computer forensics capacity - and DOJ gets to file an annual report on its expanded computer forensics capacity. $2m is appropriated for this.

Title III

Title III amends existing child protection and pornography laws to reflect advanced means of image manipulation and depiction. Sec. 301 prohibits the broadcast of live images of child abuse. Sec. 302 expands the definition of "visual depiction," basically, to cover data that has yet to be converted into a visual image. Sec. 303 amends the prohibition against importing child pornography into the United States to include live visual depictions of child pornography. Finally, Section 304 prohibits the modification of an actual visual image of a child into a pornographic picture.'

Note that Congress has attempted to amend the child pornography several times and struggled to compose a Constitutional statute. One of the struggles is that the child pornography laws are a curtailment of First Amendment rights (dont knee jerk-react - think medical text books, think Romeo and Juliet which relates the romantic life of a 13 year old girl, think people's increadibly boring baby pictures - remember, if the material is obscene, it is already illegal under a different statute) which are justified based on the government interest of protecting actual children. In a previous statutory attempt, congress prohibited electronic child pornography, regardless of whether the image was of an actual child. The constitutional problem was, if the government interest was to protect children, and if there were no children involved, then the statutory attempt failed constitutional muster because the means of curtailing child pornography was not narrowly tailored to the government interest. Here, in Sec. 304 we see the interesting move of advancing that government interest of protecting actual children by saying even where there is a non-pornographic picture of an actual child, and that photograph is morphed to become pornography - that's a problem that harms the actual child - regardless of whether the child was involved in the pornography.

Title IV

Required Report
: 4

Title IV asks for another report to Congress. This report will be on the subject of "whether a subject of an online child exploitation investigation poses a high risk of harm to children." DOJ gets $500k to finance the study

Title V: Reporting Requirement

Title V is where Sen. McCain's SAFE Act was assimilated into Biden's Protect Act. This language was not part of the Biden bill, and did not go through Congressional hearings. It replaces preexisting reporting requirement - and is summarized and explored on the CT page that discusses that requirement.

Required Report
: 5

It comes with an additional report requirement. Sec. 502(b) calls upon the GAO within 2 years of the enactment of the Protect Act -shall report to Congress on

(1) the efforts, activities, and actions of the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline, and the Attorney General in achieving the goals and purposes of this Act, as well as in carrying out any responsibilities or duties assigned to each such individual or agency under this Act;

(2) any legislative, administrative, or regulatory changes that the Comptroller General recommends be taken by or on behalf of the Attorney General to better achieve such goals and purposes, and to more effectively carry out such responsibilities and duties;

(3) the effectiveness of any actions taken and efforts made by the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline and the Attorney General to--

(A) minimize duplicating the efforts, materials, facilities, and procedures of any other Federal agency responsible for the enforcement, investigation, or prosecution of child pornography crimes; and

(B) enhance the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute child pornography crimes, including the use of existing personnel, materials, technologies, and facilities; and

(4) any actions or efforts that the Comptroller General recommends be taken by the Attorney General to reduce duplication of efforts and increase the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute child pornography crimes.

Congressional Record

Sen. Joe Biden on Introducing the bill: Mr. President, I rise today to introduce the Combating Child Exploitation Act of 2007. This legislation takes a bold step forward in addressing child exploitation.

   And, Mr. President, let me assure you, we need bold action. We have taken some important steps here in the Senate, including passing the Jacob Weterling Act, the Pam Lyncher Act, the Amber Alert program, and last year's Adam Walsh Act.

   But, this is a problem that keeps growing and growing, and we need bold action to address this problem. If we do not act, we will probably be back here naming a new bill after another unfortunate child victim.

   The bottom line is that the Internet has facilitated an exploding, multi-billion dollar market for child pornography, with 20,000 new images posted every week. This is a market that can only be supplied by the continued sexual assault and exploitation of more children and the research shows that victims are getting younger and they are being exposed to more sadistic abuse.

   The FBI and the Department of Justice have testified before Congress that there are hundreds of thousands of people trafficking child pornography in this country and millions around the world.

   We are not making a dent in this problem.

   Don't get me wrong, there are many Federal, State and local investigators and prosecutors out there working tirelessly, but need to do much more.

   We have not dedicated enough Federal agents to this problem and we have not provided enough support for States and local government.

   The most troubling aspect, one that led to the drafting of this legislation is that we know where many of these people are and if we set the right priorities we can go pick them up.

   Let me repeat that, we have new investigative techniques that will allow us to identify many of the people who are trafficking child pornography and we can go pick them up.

   A very conservative estimate is that there are more than 400,000 people who we know who are trafficking child pornography on the Internet in the U.S. right now.

   We can, with minimal effort, take these people down. But, due to lack of resources we are investigating less than 2 percent of these cases. Again, we are only investigating 2 percent of the known child pornography traffickers.

   We also know that when law enforcement agents do investigate these cases, there is a local abused child in 30 percent off the cases. And, research shows that at least 55 percent of child pornography possessors have previously sexually assaulted children or attempted to do so. So, by picking up these known offenders, we are saving children.

   Finally, it is important to note that every time one of these images or videos are shared, the child is victimized again and again.

   So, to help ensure that law enforcement has the capacity to get the job done, I am introducing the Combating Child Exploitation Act of 2007.

   First, this legislation will establish a Special Counsel in the Deputy Attorney General's Office to coordinate all activities related to preventing child exploitation. This will be one person who will be held accountable for results.

   We will also congressionally require that there be at least one Internet Crimes Against Children Task Force, CAC, in each State. This program is poised to become the backbone for our investigative efforts here in the U.S. by forming a network of highly trained investigators to focus exclusively on combating child exploitation. Under this bill, we will triple the funding for the ICAC program to help with hiring, training, and investigative resources to form this Nation-wide network.

   In addition, we will authorize over 250 new Federal agents to focus exclusively on this problem, including 125 new FBI agents, which will double the number of agents under the Innocent Images Program at the FBI, 95 new agents for the Immigration and Customs Enforcement Agency, ICE, and 31 new postal inspectors.

   This bill will help us form a coordinated effort to go after child predators. As stated previously, we know where many of these people are and we need to go get them.

   In my view, it is inexcusable that we are not putting the resources toward tracking the ones down who we know about and doing much more to find the others who are lurking in the shadows.

   This legislation will get us on the right track and I urge my colleagues to support this effort.


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