Back

Federal: H.R. 4472 - Adam Walsh Child Protection and Safety Act of 2006

From Free Speech Coalition

H.R. 4472 - Adam Walsh Child Protection and Safety Act of 2006 - Engrossed Amendment as Agreed to by Senate (Sensenbrenner)

Stated Purpose
An act to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.

Status

Introduced December 8, 2005 in the House by Rep Sensenbrenner (R-WI), with 37 co-sponsors.

Related Bills: H.R.3132H.R.3133H.R.4905
Latest Action: 7/20/2006 Passed/agreed to in Senate. Status: Passed Senate with an amendment and an amendment to the Title by Voice Vote.

Text of Title V of HR 4472
18 USC 2257 (as if July 27, 2006)
2257/4472 FAQ (NEW!)
Bullet Points 
Analysis


Bullet Points - Title V of H.R. 4472
Analysis by Reed Lee, summarized by Legislative Affairs Director Kat Sunlove

1. Title 18, Section 2257, in effect for some 18 years, has never been enforced by the Justice Department.   The absence of enforcement, however, has not harmed the Justice Department’s ability or willingness to prosecute child pornography.  The Department is actively doing so, and conviction rates are high. 

2. Title 18, Section 2257 has never been the subject of any hearing in either house of Congress. 
The section had its origins in a recommendation of the Meese Commission, even though its own findings determined that the United States adult entertainment industry had no connection with child pornography.

3. Child pornography is not protected by the First Amendment but non-obscene sexually explicit material, which does not involve children, is protected. 
The burden of proof is on the party denying protection to show that a constitutional line has been crossed. Section 2257’s most basic flaw is that it ignores this constitutional presumption that expression is legal if no children are involved.

4. Section 2257 imposes burdensome record-keeping requirements on expression which is not even imaginably child pornography.
Identification information must be gathered and recorded, then cross-indexed four different ways and stored in ways that are in some cases impossible. Ministerial errors are a federal felony calling for five years incarceration.

5. All re-publishers must also obtain and store the records.
Proposed changes to Section 2257 mandate widespread record-shifting, as copies of the required records are made and transferred to each subsequent re-publisher. The law exposes performers to the dangers of identity theft, stalking, and worse. In some cases, a re-publisher is required to keep records even where the initial publisher was not.

6. Section 2257 suffers from over-inclusiveness. 
It burdens thousands of expressive works which are not child pornography in an effort to suppress the much smaller amount of actual child pornography. Needless to say, it is unlikely that a child pornographer would keep self-incriminating records of his crime.

7. A better solution
would be a requirement that a primary producer check performer identification documents, create and maintain the records, but with a penalty analogous to those provided for in connection with the I-9 forms that all employers must prepare.


Analysis
Analysis by Reed Lee, summarized by Legislative Affairs Director Kat Sunlove

For some 18 years, federal law has imposed certain record-keeping requirements upon those who produce sexually explicit images in the United States.  The law has been supplemented with regulations promulgated by the Justice Department, but it has never been enforced. The absence of enforcement, however, has not harmed the Justice Department’s ability or willingness to prosecute child pornography.  The Department is actively doing so, and conviction rates are high.  Indeed, senior Justice Department officials told the Senate Commerce Committee earlier this year that the Department sees no need for new legislation on the subject.

Although Section 2257 has been amended on four occasions, including the present, it has never been the subject of any hearing in either house of Congress.  It has never been supported by any sort of Congressional findings (the findings in the present Title V of the substitute H.R. 4472 essentially address other matters).  The section had its origins in a recommendation of the Meese Commission, even thought its own findings determined that the United States adult entertainment industry had no connection with child pornography.

It is well established and rightly so that child pornography is not protected by the First Amendment.  But it is also clear that non-obscene sexually explicit material, which does not involve children, is protected by the U.S. Constitution. Such materials retain First Amendment protections unless they cross a properly drawn constitutional line.  Furthermore, a basic constitutional rule holds that the burden is on the party denying protection to show that such a line has been crossed. Nevertheless, the Meese Commission urged that the burden should be on the “pornographers” to prove that the material is constitutionally protected, in contradiction to the presumption of legality. Section 2257’s most basic flaw is that it ignores this constitutional presumption. 

Beyond the constitutional flaws, Section 2257 imposes incredible record-keeping burdens on expression which is not even imaginably child pornography.  These burdens would substantially increase under the pending amendment. Section 2257 and its administrative regulations require far more than an examination of performer’s identification documents and the filing of a simple form. Under Section 2257, information must not only be gathered and recorded, it must also be cross-indexed four different ways and stored in ways that are burdensome or in some cases impossible. Ministerial errors in this paperwork scheme are a federal felony calling for five years incarceration.

Not only must an original producer gather, create, cross-index, and store all of these records, but all re-publishers must also obtain and store the records themselves.  So the regulatory scheme not only requires substantially burdensome record-keeping requirements, it also mandates widespread record-shifting, as copies of the required records are made and transferred to each subsequent re-publisher.  And since federal law does nothing to protect the privacy of this information as it shifts among re-publishers, current law exposes performers to the dangers of identity theft, stalking, and worse.  Naturally enough, this has a chilling effect on the creation of constitutionally protected expression.

Many of the most egregious record-keeping burdens are created by this notion that re-publishers – so-called “secondary producers” – must also keep records.  In 1990, Congress wisely recognized the constitutional difficulties inherent in such a requirement, and it enacted what amounts to the proviso in the current statutory definition of “produces.”  Under that proviso, the courts have enjoined the Justice Department from enforcing the regulatory provisions concerning secondary producers. But the pending amendment makes a huge exception to the proviso. The new exception would require record-keeping by virtually anyone who could be considered a re-publisher.  Indeed, a re-publisher is required to keep records even where the initial publisher was not.  So, for example, a collector of old photographs who digitizes 100-year-old French postcard images in order to post them on a website would commit a federal felony by doing so unless performer information could be reconstructed and organized in proper form, obviously an impossibility.

Section 2257 suffers from what the courts call over-inclusiveness.  It burdens hundreds of thousands, if not millions, of expressive works which are not child pornography in an effort to suppress the relatively much smaller amount of existing child pornography.  And it is very unlikely that a child pornographer would keep self-incriminating records to assist in his prosecution, even if the Fifth Amendment allowed such a requirement.

By extending Section 2257’s record-keeping requirements to re-publishers, the pending amendment makes this over-inclusiveness problem far worse and exacerbates the chilling effects which follow from the current statutory language.  A far better solution would be a requirement that an initial producer check performer identification documents before creating a sexually explicit image, and then create and maintain a copy of the documents, with a penalty analogous to the penalties provided in connection with the I-9 forms which all employers must prepare. These requirements could not be said to substantially burden expression.  But the Byzantine and burdensome record-keeping requirements of Section 2257 and the new Title V requirements plainly do. When these burdens are brought to the attention of the courts, they will likely result in depriving society of the benefit which might flow from the simpler, more reasonable, and less burdensome inspection and record-keeping system just envisioned. 

Original link: http://www.freespeechcoalition.com/FSCView.asp?coid=430

 

 

 
 

       welcome     about us     calendar     news     legal page     resources     get involved!     links