Sunday, October 26, 2008

The Protect Our Children Act of 2008 - Reports and Tasks Forces

Our last post explored how the most powerful person in politics, Obama-Supporter-Oprah rallied the Oprah Nation to get the Biden-McCain Protect Our Children from the SAFE Act passed. In this post, we will explore the workings of the new law (prepared to be bored).

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

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 [REPORT COUNT: 1] .

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.

$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. [REPORT COUNT: 2]

Title II

Title II recognizes 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. [REPORT COUNT: 3] $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

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. [REPORT COUNT: 4]

Title V

Title V is a reporting requirement imposed on Internet Services, the language of which comes from McCain's SAFE Act. We will explore this new legislation in the next post.
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