[Report] Combating Child Pornography: Steps Are Needed to Ensure That Tips to Law Enforcement Are Useful and Forensic Examinations Are Cost Effective

GAO-11-334 March 31, 2011 Highlights Page (PDF) Full Report (PDF, 77 pages) Accessible Text Recommendations (HTML)

"The Department of Justice (DOJ) reports that online child pornography crime has increased. DOJ funds the National Center for Missing and Exploited Children (NCMEC), which maintains the CyberTipline to receive child pornography tips. The Providing Resources, Officers, and Technology To Eradicate Cyber Threats to Our Children Act of 2008 (the Act) contains provisions to facilitate these investigations and create a national strategy to prevent, among other things, child pornography. The Act directed GAO to report on actions to minimize duplication and enhance federal expenditures to address this crime. This report examines (1) the extent to which NCMEC determines the usefulness of tips; (2) mechanisms to help law enforcement coordination (i.e., deconfliction); and (3) the extent to which agencies are addressing factors that federal law enforcement reports may inhibit investigations. GAO analyzed the Act and spoke to law enforcement officials who investigate these crimes, selected to reflect geographic range, among other things. Although these interviews cannot be generalized, they provided insight into investigations.

"NCMEC takes steps to obtain feedback from law enforcement on the usefulness of CyberTipline reports; however, it does not systematically collect information on how useful individual reports are for initiating and advancing investigations or about information gaps that limit reports' usefulness. For instance, NCMEC solicits feedback via e-mail or in person quarterly from federal law enforcement liaisons at NCMEC about the overall usefulness of CyberTipline reports. However, according to many law enforcement officials GAO contacted, information in a CyberTipline report may not contain an image of apparent child pornography or may contain old data. NCMEC officials said that they are interested in obtaining additional feedback to enhance the usefulness of its reports and could explore additional methods to gather such information, such as creating a systematic process for obtaining feedback from federal law enforcement. Enhancing its processes for collecting feedback on the usefulness of CyberTipline reports could help NCMEC ensure that reports are as useful as possible to law enforcement. Existing deconfliction mechanisms generally prevent pursuit of the same suspects but are fragmented; DOJ is in the early stages of developing a system to address this fragmentation. Many law enforcement officials GAO contacted reported using various nonautomated (e.g., task forces) and automated (e.g., investigative systems) mechanisms to avoid duplication of effort in investigations. But these officials reported that there is not a single automated system that provides comprehensive case information and deconfliction, which can contribute to difficulties coordinating investigations. As mandated in the Act, DOJ is developing a national system to, among other things, provide law enforcement with a single deconfliction tool. Specifically, DOJ is conducting a needs assessment--which it plans to complete in 12 to 24 months--to use as a basis for system development. However, because DOJ is waiting on the results of the needs assessment to begin system development, it may be several years before the system is operational. Backlogs in the forensic analysis of digital evidence can delay or hinder online child pornography investigations; assessing the costs and benefits of taking extra steps to ensure the integrity of forensic analysis could help determine if there are efficiencies that could reduce backlogs. Forensic analysis of digital evidence consists of the review of information from digital media, such as hard drives, and can prove online child pornography crime. Several factors may contribute to backlogs in forensic analysis, including the steps federal law enforcement agencies believe enhance the integrity of analysis, such as making exact copies of digital evidence to discourage tampering. The FBI takes additional steps it believes enhance integrity, such as separating the forensic examination from the investigation. However, some federal officials and prosecutors GAO spoke with differed on the need for such steps. According to DOJ, the national strategy's working group is in a good position to address backlog issues and having this group assess the costs and benefits of steps taken to ensure the integrity of forensic analysis could help it determine potential efficiencies that could reduce backlogs. GAO recommends that NCMEC enhance its processes to collect feedback to improve tips and that DOJ assess the costs and benefits of steps agencies take to ensure the integrity of forensic analysis. NCMEC and DOJ generally concurred with our recommendations and discussed actions to address them.

Keeping the Internet Devoid of Sexual Predators Act (KIDS Act)

The Adam Walsh Child Safety and Protection Act was passed in 2006 and, among other things, created state public online databases of sex offenders and the Dru Sjodin National Sex Offender Public Website through which all of the state databases could be accessed. Leveraging information technology, the Department of Justice has now put within everyone's reach information about sex offenders in their neighborhood. Visit the site, punch in your zip code, and get a graphical map displaying who lives in your neighborhood, their name, where they live, and what they were charged with.

It's easy to use and the results can be, unfortunately, surprising.

The Dru Sjodin National Sex Offender Public Website provides information about who is near you in the real world – but what about in the virtual world. What about on social networking sites. How do you know whether a person near you online is a sex offender? Your child may be discussing with a “new friend” how yesterday some one-hit-wonder-pop band is, or how good it is that Jagr left the Rangers and went back to Russia to play hockey. That “new friend” could be anyone.

Sen. Chuck Schumer attempted to address this problem with the recently enacted Keeping the Internet Devoid of Sexual Predators Act (KIDS Act). This new law would require sexual offenders to register their email addresses and another other online identifiers that they use. The Department of Justice will house this information in a secure database and permit certified social networking sites to securely contrast their subscriber lists against the sex offender database. The statute calls for this comparison to be secure such that the DOJ Database Operator cannot see the social networking site's list – and the social networking site cannot see the database – except for those records that match records on the social networking site's list (this security is possible using cryptographic measures).

Use of the service by social networks is voluntary, they must be certified, and they may not abuse the information they come to acquire from the database.

Registration of email addresses and internet identifiers is not voluntary for the convicted sex offenders; failure to comply may subject violators to up to ten years' imprisonment.

Upon passage, sponsor Sen. Schumer stated

“Millions of teenagers log on to websites like MySpace and they, and their parents, shouldn't have to worry about running in to these predators online,” Schumer said. “Sex offenders have no business joining social networking communities - especially those with teenage users - and our legislation will help keep them out. We know that many predators are using the Internet to find victims. This legislation will take a big step toward keeping sexual predators out of the online neighborhoods our kids frequent.”

The KIDS Act was also co-sponsored by Senators Barack Obama (D-IL) and John McCain (R-AZ).

The New-Old Internet Services Child Explotation 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. The Center for Democracy and Technology commented on the inclusion of this provision by stating

Among the most problematic provisions in S.519 – which was never publicly debated by any committee–is the outsourcing of significant law enforcement investigative functions to the National Center for Missing & Exploited Children (NCMEC), which as a non-governmental entity operates outside of the core constitutional and legal protections that govern (or should govern) our criminal justice system (such as the 4th Amendment, the Privacy Act, the Freedom of Information Act, etc.). Although NCMEC makes valuable contributions in the child safety arena, the growing trend in Congress to outsource law enforcement functions to a nominally private group—without any serious oversight or procedural protections— takes us down a dangerous path. [CDT]

Before exploring what Title V does, note first that Internet services already have a reporting obligation. In 1998, Congress passed the Child Protection and Sexual Predator Punishment Act which, in part, requires Internet services which become aware of child pornography to report this information to the National Center for Missing and Exploited Children. Note that this does not require Internet services to go out and affirmatively police their systems. It only states that when Internet services gain actual knowledge, then action must be taken. 42 U.S.C. § 13032(e)

Reports can be made to

The Cyber Tip Line
National Center for Missing and Exploited Children
www.cybertipline.com
1-800-843-5678

It's not immediately apparent what is the new McCain SAFE Act Provisions bring to the table, so to elucidate, here is a side-by-side, comparing the new legislation to the old statute (it's a bit of a hack job but the language parallels pretty well. Old language is on the left in Green. New language is on the right; new and different language is highlighted in red) - well it was suppose to be a side-by-side but Glogger is refusing to render it correctly, so let's try a different way - the Cybertelecom website will have this as a side-by-side:

• Definitions
  
  
  • Old Language 42 USC 13032
    
    
    
    • (a) Definitions In this section—
      
      (1) the term “electronic communication service” has the meaning given the term in section 2510 of title 18 ; and
      
      (2) the term “remote computing service” has the meaning given the term in section 2711 of title 18 .
  
  
  • New Language 18 USC 2258A
  
  
  • n/a


• Who has the Duty
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (b) Requirements (1) Duty to report.— Whoever, while engaged in providing an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce,
  
  
  • New Language 18 USC 2258A
  
  
  • (a) Duty To Report- (1) IN GENERAL- Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce,
  
  
• What triggers the Duty


• Old Language 42 USC 13032
  
  
  
  • obtains knowledge of facts or circumstances
    

    from which a violation of section 2251 , 2251A , 2252 , 2252A , 2252B , or 2260 of title 18 , involving child pornography (as defined in section 2256 of that title), or a violation of section 1466A of that title, is apparent,

    shall, as soon as reasonably possible, . . . . .



• New Language 18 USC 2258A
  
  
  
  • obtains actual knowledge of any facts or circumstances
    

    described in paragraph (2)

    shall, as soon as reasonably possible--

    . . . . .

    `(2) FACTS OR CIRCUMSTANCES- The facts or circumstances described in this paragraph are any facts or circumstances from which there is an apparent violation of--

    `(A) section 2251, 2251A, 2252, 2252A, 2252B, or 2260 that involves child pornography; or

    `(B) section 1466A.

• Monitoring
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (e) Monitoring not required Nothing in this section may be construed to require a provider of electronic communication services or remote computing services to engage in the monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person.
    
    
  • New Language 18 USC 2258A
    
    
    
    • `(f) Protection of Privacy- Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to--
      

      `(1) monitor any user, subscriber, or customer of that provider;

      `(2) monitor the content of any communication of any person described in paragraph (1); or

      `(3) affirmatively seek facts or circumstances described in sections (a) and (b).

• Duty
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • make a report of such facts or circumstances
    
    
  • New Language 18 USC 2258A
    
    
    
    • `(A) provide. . .
      
      `(B) make a report of such facts or circumstances


• To Whom
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • to the Cyber Tip Line at the National Center for Missing and Exploited Children,
  
  
  • New Language 18 USC 2258A
    
    
    
    • to the CyberTipline of the National Center for Missing and Exploited Children, or any successor to the CyberTipline operated by such center,
      

      to the CyberTipline, or any successor to the CyberTipline operated by such center.

• What must be reported
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (d) Limitation of information or material required in report A report under subsection (b)(1) of this section may include additional information or material developed by an electronic communication service or remote computing service, except that the Federal Government may not require the production of such information or material in that report.
  
  
  • New Language 18 USC 2258A
    
    
    
    • the mailing address, telephone number, facsimile number, electronic mail address of, and individual point of contact for, such electronic communication service provider or remote computing service provider; and
      

      . . .

      `(b) Contents of Report- To the extent the information is within the custody or control of an electronic communication service provider or a remote computing service provider, the facts and circumstances included in each report under subsection (a)(1) may include the following information:

      `(1) INFORMATION ABOUT THE INVOLVED INDIVIDUAL- Information relating to the identity of any individual who appears to have violated a Federal law described in subsection (a)(2), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, or any other identifying information, including self-reported identifying information.

      `(2) HISTORICAL REFERENCE- Information relating to when and how a customer or subscriber of an electronic communication service or a remote computing service uploaded, transmitted, or received apparent child pornography or when and how apparent child pornography was reported to, or discovered by the electronic communication service provider or remote computing service provider, including a date and time stamp and time zone.

      `(3) GEOGRAPHIC LOCATION INFORMATION-

      `(A) IN GENERAL- Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified billing address, or, if not reasonably available, at least 1 form of geographic identifying information, including area code or zip code.

      `(B) INCLUSION- The information described in subparagraph (A) may also include any geographic information provided to the electronic communication service or remote computing service by the customer or subscriber.

      `(4) IMAGES OF APPARENT CHILD PORNOGRAPHY- Any image of apparent child pornography relating to the incident such report is regarding.

      `(5) COMPLETE COMMUNICATION- The complete communication containing any image of apparent child pornography, including--

      `(A) any data or information regarding the transmission of the communication; and

      `(B) any images, data, or other digital files contained in, or attached to, the communication.

• Disclosure to Law Enforcement
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • which shall forward that report to a law enforcement agency or agencies designated by the Attorney General. . . .
      

      (3) In addition to forwarding such reports to those agencies designated in subsection (b)(2) of this section, the National Center for Missing and Exploited Children is authorized to forward any such report to an appropriate official of a state or subdivision of a state for the purpose of enforcing state criminal law.

      . . . . .

      (f) Conditions of disclosure of information contained within report

      (1) In general No law enforcement agency that receives a report under subsection (b)(1) of this section shall disclose any information contained in that report, except that disclosure of such information may be made—

      (A) to an attorney for the government for use in the performance of the official duties of the attorney;

      (B) to such officers and employees of the law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;

      (C) to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law; or

      (D) where the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law.

      (2) Definitions In this subsection, the terms “attorney for the government” and “State” have the meanings given those terms in Rule 54 of the Federal Rules of Criminal Procedure.

  • New Language 18 USC 2258A
    
    
    
    • `(c) Forwarding of Report to Law Enforcement-
      

      `(1) IN GENERAL- The National Center for Missing and Exploited Children shall forward each report made under subsection (a)(1) to any appropriate law enforcement agency designated by the Attorney General under subsection (d)(2).

      `(2) STATE AND LOCAL LAW ENFORCEMENT- The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to an appropriate law enforcement official of a State or political subdivision of a State for the purpose of enforcing State criminal law.

      `(3) FOREIGN LAW ENFORCEMENT-

      `(A) IN GENERAL- The National Center for Missing and Exploited Children may forward any report made under subsection (a)(1) to any appropriate foreign law enforcement agency designated by the Attorney General under subsection (d)(3), subject to the conditions established by the Attorney General under subsection (d)(3).

      `(B) TRANSMITTAL TO DESIGNATED FEDERAL AGENCIES- If the National Center for Missing and Exploited Children forwards a report to a foreign law enforcement agency under subparagraph (A), the National Center for Missing and Exploited Children shall concurrently provide a copy of the report and the identity of the foreign law enforcement agency to--

      `(i) the Attorney General; or

      `(ii) the Federal law enforcement agency or agencies designated by the Attorney General under subsection (d)(2).

      . . . . .

      `(g) Conditions of Disclosure Information Contained Within Report-

      `(1) IN GENERAL- Except as provided in paragraph (2), a law enforcement agency that receives a report under subsection (c) shall not disclose any information contained in that report.

      `(2) PERMITTED DISCLOSURES BY LAW ENFORCEMENT-

      `(A) IN GENERAL- A law enforcement agency may disclose information in a report received under subsection (c)--

      `(i) to an attorney for the government for use in the performance of the official duties of that attorney;

      `(ii) to such officers and employees of that law enforcement agency, as may be necessary in the performance of their investigative and recordkeeping functions;

      `(iii) to such other government personnel (including personnel of a State or subdivision of a State) as are determined to be necessary by an attorney for the government to assist the attorney in the performance of the official duties of the attorney in enforcing Federal criminal law;

      `(iv) if the report discloses a violation of State criminal law, to an appropriate official of a State or subdivision of a State for the purpose of enforcing such State law;

      `(v) to a defendant in a criminal case or the attorney for that defendant, subject to the terms and limitations under section 3509(m) or a similar State law, to the extent the information relates to a criminal charge pending against that defendant;

      `(vi) subject to subparagraph (B), to an electronic communication service provider or remote computing provider if necessary to facilitate response to legal process issued in connection to a criminal investigation, prosecution, or post-conviction remedy relating to that report; and

      `(vii) as ordered by a court upon a showing of good cause and pursuant to any protective orders or other conditions that the court may impose.

      . . . . .

      `(B) LIMITATIONS-

      `(i) LIMITATIONS ON FURTHER DISCLOSURE- The electronic communication service provider or remote computing service provider shall be prohibited from disclosing the contents of a report provided under subparagraph (A)(vi) to any person, except as necessary to respond to the legal process.

      `(ii) EFFECT- Nothing in subparagraph (A)(vi) authorizes a law enforcement agency to provide child pornography images to an electronic communications service provider or a remote computing service.

      `(3) PERMITTED DISCLOSURES BY THE NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN- The National Center for Missing and Exploited Children may disclose information received in a report under subsection (a) only--

      `(A) to any Federal law enforcement agency designated by the Attorney General under subsection (d)(2);

      `(B) to any State, local, or tribal law enforcement agency involved in the investigation of child pornography, child exploitation, kidnapping, or enticement crimes;

      `(C) to any foreign law enforcement agency designated by the Attorney General under subsection (d)(3); and

      `(D) to an electronic communication service provider or remote computing service provider as described in section 2258C.

• Penalty for Failure to Report
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (4) Failure to report.— A provider of electronic communication services or remote computing services described in paragraph (1) who knowingly and willfully fails to make a report under that paragraph shall be fined—
      

      (A) in the case of an initial failure to make a report, not more than $50,000; and

      (B) in the case of any second or subsequent failure to make a report, not more than $100,000.

  • New Language 18 USC 2258A
    
    
    
    • `(e) Failure To Report- An electronic communication service provider or remote computing service provider that knowingly and willfully fails to make a report required under subsection (a)(1) shall be fined--
      

      `(1) in the case of an initial knowing and willful failure to make a report, not more than $150,000; and

      `(2) in the case of any second or subsequent knowing and willful failure to make a report, not more than $300,000.

• Designation of Agent
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (2) Designation of agencies.— Not later than 180 days after October 30, 1998, the Attorney General shall designate the law enforcement agency or agencies to which a report shall be forwarded under paragraph (1).
    
    
  • New Language 18 USC 2258A
    
    
    
    
    • `(d) Attorney General Responsibilities-
      

      `(1) IN GENERAL- The Attorney General shall enforce this section.

      `(2) DESIGNATION OF FEDERAL AGENCIES- The Attorney General shall designate promptly the Federal law enforcement agency or agencies to which a report shall be forwarded under subsection (c)(1).

      `(3) DESIGNATION OF FOREIGN AGENCIES- The Attorney General shall promptly--

      `(A) in consultation with the Secretary of State, designate the foreign law enforcement agencies to which a report may be forwarded under subsection (c)(3);

      `(B) establish the conditions under which such a report may be forwarded to such agencies; and

      `(C) develop a process for foreign law enforcement agencies to request assistance from Federal law enforcement agencies in obtaining evidence related to a report referred under subsection (c)(3).

      `(4) REPORTING DESIGNATED FOREIGN AGENCIES- The Attorney General shall maintain and make available to the Department of State, the National Center for Missing and Exploited Children, electronic communication service providers, remote computing service providers, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a list of the foreign law enforcement agencies designated under paragraph (3).

      `(5) SENSE OF CONGRESS REGARDING DESIGNATION OF FOREIGN AGENCIES- It is the sense of Congress that--

      `(A) combating the international manufacturing, possession, and trade in online child pornography requires cooperation with competent, qualified, and appropriately trained foreign law enforcement agencies; and

      `(B) the Attorney General, in cooperation with the Secretary of State, should make a substantial effort to expand the list of foreign agencies designated under paragraph (3).

• Notification to Internet Service
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • n/a
    
    
  • New Language 18 USC 2258A
    
    
    
    • `(6) NOTIFICATION TO PROVIDERS- If an electronic communication service provider or remote computing service provider notifies the National Center for Missing and Exploited Children that the electronic communication service provider or remote computing service provider is making a report under this section as the result of a request by a foreign law enforcement agency, the National Center for Missing and Exploited Children shall--
      

      `(A) if the Center forwards the report to the requesting foreign law enforcement agency or another agency in the same country designated by the Attorney General under paragraph (3), notify the electronic communication service provider or remote computing service provider of--

      `(i) the identity of the foreign law enforcement agency to which the report was forwarded; and

      `(ii) the date on which the report was forwarded; or

      `(B) notify the electronic communication service provider or remote computing service provider if the Center declines to forward the report because the Center, in consultation with the Attorney General, determines that no law enforcement agency in the foreign country has been designated by the Attorney General under paragraph (3).

• Preservation of Records
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • n/a
    
    
  • New Language 18 USC 2258A
    
    
    
    • `(h) Preservation-
      

      `(1) IN GENERAL- For the purposes of this section, the notification to an electronic communication service provider or a remote computing service provider by the CyberTipline of receipt of a report under subsection (a)(1) shall be treated as a request to preserve, as if such request was made pursuant to section 2703(f).

      `(2) PRESERVATION OF REPORT- Pursuant to paragraph (1), an electronic communication service provider or a remote computing service shall preserve the contents of the report provided pursuant to subsection (b) for 90 days after such notification by the CyberTipline.

      `(3) PRESERVATION OF COMMINGLED IMAGES- Pursuant to paragraph (1), an electronic communication service provider or a remote computing service shall preserve any images, data, or other digital files that are commingled or interspersed among the images of apparent child pornography within a particular communication or user-created folder or directory.

      `(4) PROTECTION OF PRESERVED MATERIALS- An electronic communications service or remote computing service preserving materials under this section shall maintain the materials in a secure location and take appropriate steps to limit access by agents or employees of the service to the materials to that access necessary to comply with the requirements of this subsection.

      `(5) AUTHORITIES AND DUTIES NOT AFFECTED- Nothing in this section shall be construed as replacing, amending, or otherwise interfering with the authorities and duties under section 2703.



• Liability Limitation
  
  
  
  • Old Language 42 USC 13032
    
    
    
    • (c) Civil liability No provider or user of an electronic communication service or a remote computing service to the public shall be held liable on account of any action taken in good faith to comply with or pursuant to this section.
    
    
  • New Language 18 USC 2258A
    
    
    
    • `SEC. 2258B. LIMITED LIABILITY FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS, REMOTE COMPUTING SERVICE PROVIDERS, OR DOMAIN NAME REGISTRAR.
      

      `(a) In General- Except as provided in subsection (b), a civil claim or criminal charge against an electronic communication service provider, a remote computing service provider, or domain name registrar, including any director, officer, employee, or agent of such electronic communication service provider, remote computing service provider, or domain name registrar arising from the performance of the reporting or preservation responsibilities of such electronic communication service provider, remote computing service provider, or domain name registrar under this section, section 2258A, or section 2258C may not be brought in any Federal or State court.

      `(b) Intentional, Reckless, or Other Misconduct- Subsection (a) shall not apply to a claim if the electronic communication service provider, remote computing service provider, or domain name registrar, or a director, officer, employee, or agent of that electronic communication service provider, remote computing service provider, or domain name registrar--

      `(1) engaged in intentional misconduct; or

      `(2) acted, or failed to act--

      `(A) with actual malice;

      `(B) with reckless disregard to a substantial risk of causing physical injury without legal justification; or

      `(C) for a purpose unrelated to the performance of any responsibility or function under this section, sections 2258A, 2258C, 2702, or 2703.

      `(c) Minimizing Access- An electronic communication service provider, a remote computing service provider, and domain name registrar shall--

      `(1) minimize the number of employees that are provided access to any image provided under section 2258A or 2258C; and

      `(2) ensure that any such image is permanently destroyed, upon a request from a law enforcement agency to destroy the image.

This comparison was necessary because it was not immediately clear what McCain's SAFE Act brings to the table - and after creating the side-by-side, its still not clear (Congress did impose a long desired record retention requirement - See Record Retention).

Why did Congress felt it necessary to create an entirely new law to address this issue? Understand, the new law does not replace the old. BOTH the new law and the old law now are on the books - and one could in theory be found to have violated both statutes and suffer both penalties. And as far as I can tell from the side-by-side, the new SAFE Act is merely an elaboration and tweaking of the old law - at times the language in the two different statutes is all but plagiarized. I really would be interested to hear from those that might have insight on this legislative maneuver.

Second, I know that CDT complains about the new outsourced role of the National Center for Missing & Exploited Children - but as can be seen, the role is not new. The role of the National Center for Missing & Exploited Children is all but identical under both the old and new statutes - receive, aggregate, and forward information to law enforcement. There may or may not be an objection to this outsourcing, but the role of the National Center for Missing & Exploited Children is not new.

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.