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Laws Concerning Child Pornography
Federal Laws
State Laws
Federal Laws
18 U.S.C. § 1466A (2008)
§ 1466A. OBSCENE VISUAL REPRESENTATIONS OF
THE SEXUAL ABUSE OF CHILDREN
(a) In general. Any person who, in a circumstance described in subsection
(d), knowingly produces, distributes, receives, or possesses with intent
to distribute, a visual depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that--
(1) (A) depicts a minor engaging in sexually explicit conduct;
and
(B) is obscene; or
(2) (A) depicts an image that is, or appears to be, of a minor
engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political,
or scientific value; or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(1) [18
USCS § 2252A(b)(1)], including the penalties provided for cases involving
a prior conviction.
(b) Additional offenses. Any person who, in a circumstance described in subsection
(d), knowingly possesses a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that--
(1) (A) depicts a minor engaging in sexually explicit conduct;
and
(B) is obscene; or
(2) (A) depicts an image that is, or appears to be, of
a minor engaging in graphic bestiality, sadistic or masochistic abuse,
or sexual intercourse, including genital-genital, oral-genital, anal-genital,
or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political,
or scientific value; or attempts or conspires to do so, shall be subject to the
penalties provided in section 2252A(b)(2) [18
USCS § 2252A(b)(2)], including the penalties provided for cases involving
a prior conviction.
(c) Nonrequired element of offense. It is not a required element of any offense
under this section that the minor depicted actually exist.
(d) Circumstances. The circumstance referred to in subsections (a) and (b) is
that--
(1) any communication involved in or made in furtherance of
the offense is communicated or transported by the mail, or in interstate or foreign
commerce by any means, including by computer, or any means or instrumentality
of interstate or foreign commerce is otherwise used in committing or in furtherance
of the commission of the offense;
(2) any communication involved in or made in furtherance of
the offense contemplates the transmission or transportation of a visual depiction
by the mail, or in interstate or foreign commerce by any means, including by
computer;
(3) any person travels or is transported in interstate or foreign
commerce in the course of the commission or in furtherance of the commission
of the offense;
(4) any visual depiction involved in the offense has been mailed,
or has been shipped or transported in interstate or foreign commerce by any means,
including by computer, or was produced using materials that have been mailed,
or that have been shipped or transported in interstate or foreign commerce by
any means, including by computer; or
(5) the offense is committed in the special maritime and territorial
jurisdiction of the United States or in any territory or possession of the United
States.
(e) Affirmative defense. It shall be an affirmative defense to a charge of violating
subsection (b) that the defendant--
(1) possessed less than 3 such visual depictions; and
(2) promptly and in good faith, and without retaining or allowing
any person, other than a law enforcement agency, to access any such visual depiction--
(A) took reasonable steps to destroy each such
visual depiction; or
(B) reported the matter to a law enforcement agency
and afforded that agency access to each such visual depiction.
(f) Definitions. For purposes of this section--
(1) the term "visual depiction" includes undeveloped
film and videotape, and data stored on a computer disk or by electronic means
which is capable of conversion into a visual image, and also includes any photograph,
film, video, picture, digital image or picture, computer image or picture, or
computer generated image or picture, whether made or produced by electronic,
mechanical, or other means;
(2) the term "sexually explicit conduct" has the
meaning given the term in section 2256(2)(A) or 2256(2)(B) [18
USCS § 2256(2)(A) or 2256(2)(B)];
and
(3) the term "graphic", when used with respect to
a depiction of sexually explicit conduct, means that a viewer can observe any
part of the genitals or pubic area of any depicted person or animal during any
part of the time that the sexually explicit conduct is being depicted.
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18 U.S.C. § 2251 (2008)
§ 2251. SEXUAL EXPLOITATION
OF CHILDREN
(a) Any person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in, or who has a minor assist any other person to
engage in, or who transports any minor in or affecting interstate or
foreign commerce, or in any Territory or Possession of the United States,
with the intent that such minor engage in, any sexually explicit conduct
for the purpose of producing any visual depiction of such conduct or
for the purpose of transmitting a live visual depiction of such conduct,
shall be punished as provided under subsection (e), if such person knows
or has reason to know that such visual depiction will be transported
or transmitted using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce or mailed, if that
visual depiction was produced or transmitted using materials that have
been mailed, shipped, or transported in or affecting interstate or foreign
commerce by any means, including by computer, or if such visual depiction
has actually been transported or transmitted using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign
commerce or mailed.
(b) Any parent, legal guardian, or person having custody or control of a minor
who knowingly permits such minor to engage in, or to assist any other person
to engage in, sexually explicit conduct for the purpose of producing any visual
depiction of such conduct or for the purpose of transmitting a live visual depiction
of such conduct shall be punished as provided under subsection (e) of this section,
if such parent, legal guardian, or person knows or has reason to know that such
visual depiction will be transported or transmitted using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign commerce
or mailed, if that visual depiction was produced or transmitted using materials
that have been mailed, shipped, or transported in or affecting interstate or
foreign commerce by any means, including by computer, or if such visual depiction
has actually been transported or transmitted using any means or facility of interstate
or foreign commerce or in or affecting interstate or foreign commerce or mailed.
(c)
(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any minor to engage
in, or who has a minor assist any other person to engage in, any sexually explicit
conduct outside of the United States, its territories or possessions, for the
purpose of producing any visual depiction of such conduct, shall be punished
as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that--
(A) the person intends such visual depiction to
be transported to the United States, its territories or possessions, by any means,
including by using any means or facility of interstate or foreign commerce or
mail; or
(B) the person transports such visual depiction
to the United States, its territories or possessions, by any means, including
by using any means or facility of interstate or foreign commerce or mail.
(d)
(1) Any person who, in a circumstance described in paragraph
(2), knowingly makes, prints, or publishes, or causes to be made, printed, or
published, any notice or advertisement seeking or offering--
(A) to receive, exchange, buy, produce, display,
distribute, or reproduce, any visual depiction, if the production of such visual
depiction involves the use of a minor engaging in sexually explicit conduct and
such visual depiction is of such conduct; or
(B) participation in any act of sexually explicit
conduct by or with any minor for the purpose of producing a visual depiction
of such conduct;
shall be punished as provided under subsection (e).
(2) The circumstance referred to in paragraph (1) is that--
(A) such person knows or has reason to know that
such notice or advertisement will be transported using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign commerce
by any means including by computer or mailed; or
(B) such notice or advertisement is transported
using any means or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce by any means including by computer or mailed.
(e) Any individual who violates, or attempts or conspires to violate, this section
shall be fined under this title and imprisoned not less than 15 years nor more
than 30 years, but if such person has one prior conviction under this chapter,
section 1591 [18
USCS § 1591], chapter 71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., 18
USCS §§ 1460 et seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking
of children, or the production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person shall be fined
under this title and imprisoned for not less than 25 years nor more than 50 years,
but if such person has 2 or more prior convictions under this chapter, chapter
71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., 18
USCS §§ 1460 et seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to the sexual exploitation
of children, such person shall be fined under this title and imprisoned not less
than 35 years nor more than life. Any organization that violates, or attempts
or conspires to violate, this section shall be fined under this title. Whoever,
in the course of an offense under this section, engages in conduct that results
in the death of a person, shall be punished by death or imprisoned for not less
than 30 years or for life.
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18 U.S.C. § 2251A (2008)
§ 2251A. SELLING OR BUYING OF CHILDREN
(a) Any parent, legal guardian, or other person having custody or control
of a minor who sells or otherwise transfers custody or control of such
minor, or offers to sell or otherwise transfer custody of such minor
either--
(1) with knowledge that, as a consequence of the sale or transfer,
the minor will be portrayed in a visual depiction engaging in, or assisting another
person to engage in, sexually explicit conduct; or
(2) with intent to promote either--
(A) the engaging in of sexually explicit conduct
by such minor for the purpose of producing any visual depiction of such conduct;
or
(B) the rendering of assistance by the minor to
any other person to engage in sexually explicit conduct for the purpose of producing
any visual depiction of such conduct;
shall be punished by imprisonment for not less than 30 years or for life and
by a fine under this title, if any of the circumstances described in subsection
(c) of this section exist.
(b) Whoever purchases or otherwise obtains custody or control of a minor, or
offers to purchase or otherwise obtain custody or control of a minor either--
(1) with knowledge that, as a consequence of the purchase or
obtaining of custody, the minor will be portrayed in a visual depiction engaging
in, or assisting another person to engage in, sexually explicit conduct; or
(2) with intent to promote either--
(A) the engaging in of sexually explicit conduct
by such minor for the purpose of producing any visual depiction of such conduct;
or
(B) the rendering of assistance by the minor to
any other person to engage in sexually explicit conduct for the purpose of producing
any visual depiction of such conduct;
shall be punished by imprisonment for not less than 30 years or for life and
by a fine under this title, if any of the circumstances described in subsection
(c) of this section exist.
(c) The circumstances referred to in subsections (a) and (b) are that--
(1) in the course of the conduct described in such subsections
the minor or the actor traveled in or was transported in or affecting interstate
or foreign commerce;
(2) any offer described in such subsections was communicated
or transported using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce by any means including by computer
or mail; or
(3) the conduct described in such subsections took place in
any territory or possession of the United States.
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18 U.S.C. § 2252 (2008)
§ 2252. CERTAIN ACTIVITIES RELATING TO MATERIAL
INVOLVING THE SEXUAL EXPLOITATION OF MINORS
(a) Any person who--
(1) knowingly transports or ships using any means or facility
of interstate or foreign commerce or in or affecting interstate or foreign commerce
by any means including by computer or mails, any visual depiction, if--
(A) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction
using any means or facility of interstate or foreign commerce or that has been
mailed, or has been shipped or transported in or affecting interstate or foreign
commerce, or which contains materials which have been mailed or so shipped or
transported, by any means including by computer, or knowingly reproduces any
visual depiction for distribution using any means or facility of interstate or
foreign commerce or in or affecting interstate or foreign commerce by any means
including by computer or through the mails, if--
(A) the producing of such visual depiction involves
the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(3) either--
(A) in the special maritime and territorial jurisdiction
of the United States, or on any land or building owned by, leased to, or otherwise
used by or under the control of the Government of the United States, or in the
Indian country as defined in section 1151 of this title
[18 USCS § 1151], knowingly sells or possesses with intent to sell any
visual depiction; or
(B) knowingly sells or possesses with intent to
sell any visual depiction that has been mailed, shipped, or transported using
any means or facility of interstate or foreign commerce, or has been shipped
or transported in or affecting interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or transported using any
means or facility of interstate or foreign commerce, including by computer, if--
(i) the producing of such
visual depiction involves the use of a minor engaging in sexually explicit conduct;
and
(ii) such visual depiction
is of such conduct; or
(4) either--
(A) in the special maritime and territorial jurisdiction
of the United States, or on any land or building owned by, leased to, or otherwise
used by or under the control of the Government of the United States, or in the
Indian country as defined in section 1151 of this title
[18 USCS § 1151], knowingly possesses, or knowingly accesses with intent
to view, 1 or more books, magazines, periodicals, films, video tapes, or other
matter which contain any visual depiction; or
(B) knowingly possesses, or knowingly accesses
with intent to view, 1 or more books, magazines, periodicals, films, video tapes,
or other matter which contain any visual depiction that has been mailed, or has
been shipped or transported using any means or facility of interstate or foreign
commerce or in or affecting interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or transported, by any means
including by computer, if--
(i) the producing of such
visual depiction involves the use of a minor engaging in sexually explicit conduct;
and
(ii) such visual depiction
is of such conduct;
shall be punished as provided in subsection (b) of this section.
(b)
(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), or (3) of subsection (a) shall be fined under this title
and imprisoned not less than 5 years and not more than 20 years, but if such
person has a prior conviction under this chapter, section 1591 [18
USCS § 1591], chapter 71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., §§ 1460 et
seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, or sex trafficking of children, such person shall be fined
under this title and imprisoned for not less than 15 years nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title or imprisoned
not more than 10 years, or both, but if such person has a prior conviction under
this chapter, chapter 71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., §§ 1460 et
seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under this title and imprisoned
for not less than 10 years nor more than 20 years.
(c) Affirmative defense. It shall be an affirmative defense to a charge of violating
paragraph (4) of subsection (a) that the defendant--
(1) possessed less than three matters containing any visual
depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing
any person, other than a law enforcement agency, to access any visual depiction
or copy thereof--
(A) took reasonable steps to destroy each such
visual depiction; or
(B) reported the matter to a law enforcement agency
and afforded that agency access to each such visual depiction.
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18 U.S.C. § 2252A (2008)
§ 2252A. CERTAIN ACTIVITIES RELATING TO
MATERIAL CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY
(a) Any person who--
(1) knowingly mails, or transports or ships using any means
or facility of interstate or foreign commerce or in interstate or foreign commerce
by any means, including by computer, any child pornography;
(2) knowingly receives or distributes--
(A) any child pornography that has been mailed,
or using any means or facility of interstate or foreign commerce shipped or transported
in interstate or foreign commerce by any means, including by computer; or
(B) any material that contains child pornography
that has been mailed, or using any means or facility of interstate or foreign
commerce shipped or transported in interstate or foreign commerce by any means,
including by computer;
(3) knowingly--
(A) reproduces any child pornography for distribution
through the mails, or using any means or facility of interstate or foreign commerce
or in interstate or foreign commerce by any means, including by computer; or
(B) advertises, promotes, presents, distributes,
or solicits through the mails, or using any means or facility of interstate or
foreign commerce or in interstate or foreign commerce by any means, including
by computer, any material or purported material in a manner that reflects the
belief, or that is intended to cause another to believe, that the material or
purported material is, or contains--
(i) an obscene visual depiction
of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction
of an actual minor engaging in sexually explicit conduct;
(4) either--
(A) in the special maritime and territorial jurisdiction
of the United States, or on any land or building owned by, leased to, or otherwise
used by or under the control of the United States Government, or in the Indian
country (as defined in section 1151 [18
USCS § 1151]), knowingly sells or possesses with the intent to sell
any child pornography; or
(B) knowingly sells or possesses with the intent
to sell any child pornography that has been mailed, or shipped or transported
using any means or facility of interstate or foreign commerce or in interstate
or foreign commerce by any means, including by computer, or that was produced
using materials that have been mailed, or shipped or transported in interstate
or foreign commerce by any means, including by computer;
(5) either--
(A) in the special maritime and territorial jurisdiction
of the United States, or on any land or building owned by, leased to, or otherwise
used by or under the control of the United States Government, or in the Indian
country (as defined in section 1151 [18
USCS § 1151]), knowingly possesses, or knowingly accesses with intent
to view, any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography; or
(B) knowingly possesses, or knowingly accesses
with intent to view, any book, magazine, periodical, film, videotape, computer
disk, or any other material that contains an image of child pornography that
has been mailed, or shipped or transported using any means or facility of interstate
or foreign commerce or in interstate or foreign commerce by any means, including
by computer, or that was produced using materials that have been mailed, or shipped
or transported in interstate or foreign commerce by any means, including by computer;
(6) knowingly distributes, offers, sends, or provides to a
minor any visual depiction, including any photograph, film, video, picture, or
computer generated image or picture, whether made or produced by electronic,
mechanical, or other means, where such visual depiction is, or appears to be,
of a minor engaging in sexually explicit conduct--
(A) that has been mailed, shipped, or transported
using any means or facility of interstate or foreign commerce or in interstate
or foreign commerce by any means, including by computer;
(B) that was produced using materials that have
been mailed, shipped, or transported in interstate or foreign commerce by any
means, including by computer; or
(C) which distribution, offer, sending, or provision
is accomplished using the mails or any means or facility of interstate or foreign
commerce,
for purposes of inducing or persuading a minor to participate
in any activity that is illegal; or
(7) knowingly produces with intent to distribute, or distributes,
by any means, including a computer, in or affecting interstate or foreign commerce,
child pornography that is an adapted or modified depiction of an identifiable
minor.
shall be punished as provided in subsection (b); or
(b)
(1) Whoever violates, or attempts or conspires to violate,
paragraph (1), (2), (3), (4), or (6) of subsection (a) shall be fined under this
title and imprisoned not less than 5 years and not more than 20 years, but, if
such person has a prior conviction under this chapter, section 1591 [18
USCS § 1591], chapter 71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., §§ 1460 et
seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, or sex trafficking of children, such person shall be fined
under this title and imprisoned for not less than 15 years nor more than 40 years.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title or imprisoned not more than
10 years, or both, but, if such person has a prior conviction under this chapter,
chapter 71, chapter 109A, or chapter 117 [18
USCS §§ 2251 et seq., §§ 1460 et
seq., 2241 et
seq., or 2421 et
seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to aggravated sexual abuse,
sexual abuse, or abusive sexual conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or transportation
of child pornography, such person shall be fined under this title and imprisoned
for not less than 10 years nor more than 20 years.
(3) Whoever violates, or attempts or conspires to violate,
subsection (a)(7) shall be fined under this title or imprisoned not more than
15 years, or both.
(c) It shall be an affirmative defense to a charge of violating paragraph (1),
(2), (3)(A), (4), or (5) of subsection (a) that--
(1) (A) the alleged child pornography was produced using an
actual person or persons engaging in sexually explicit conduct; and
(B) each such person was an adult at the time
the material was produced; or
(2) the alleged child pornography was not produced using any
actual minor or minors.
No affirmative defense under subsection (c)(2) shall be available in any prosecution
that involves child pornography as described in section 2256(8)(C) [18
USCS § 2256(8)(C)]. A defendant may not assert an affirmative defense
to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection
(a) unless, within the time provided for filing pretrial motions or at such time
prior to trial as the judge may direct, but in no event later than 10 days before
the commencement of the trial, the defendant provides the court and the United
States with notice of the intent to assert such defense and the substance of
any expert or other specialized testimony or evidence upon which the defendant
intends to rely. If the defendant fails to comply with this subsection, the court
shall, absent a finding of extraordinary circumstances that prevented timely
compliance, prohibit the defendant from asserting such defense to a charge of
violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) or presenting
any evidence for which the defendant has failed to provide proper and timely
notice.
(d) Affirmative defense. It shall be an affirmative defense to a charge of violating
subsection (a)(5) that the defendant--
(1) possessed less than three images of child pornography;
and
(2) promptly and in good faith, and without retaining or allowing
any person, other than a law enforcement agency, to access any image or copy
thereof--
(A) took reasonable steps to destroy each such
image; or
(B) reported the matter to a law enforcement agency
and afforded that agency access to each such image.
(e) Admissibility of evidence. On motion of the government, in any prosecution
under this chapter [18
USCS §§ 2251 et seq.] or section
1466A [18
USCS § 1466A], except for good cause shown, the name, address, social
security number, or other nonphysical identifying information, other than the
age or approximate age, of any minor who is depicted in any child pornography
shall not be admissible and may be redacted from any otherwise admissible evidence,
and the jury shall be instructed, upon request of the United States, that it
can draw no inference from the absence of such evidence in deciding whether the
child pornography depicts an actual minor.
(f) Civil remedies.
(1) In general. Any person aggrieved by reason of the conduct
prohibited under subsection (a) or (b) or section 1466A [18
USCS § 1466A] may commence a civil action for the relief set forth in
paragraph (2).
(2) Relief. In any action commenced in accordance with paragraph
(1), the court may award appropriate relief, including--
(A) temporary, preliminary, or permanent injunctive
relief;
(B) compensatory and punitive damages; and
(C) the costs of the civil action and reasonable
fees for attorneys and expert witnesses.
(g) Child exploitation enterprises.
(1) Whoever engages in a child exploitation enterprise shall
be fined under this title and imprisoned for any term of years not less than
20 or for life.
(2) A person engages in a child exploitation enterprise for
the purposes of this section if the person violates section 1591 [18
USCS § 1591], section
1201 [18
USCS § 1201] if the victim is a minor, or chapter 109A [18
USCS §§ 2241 et seq.] (involving a minor victim), 110 [18
USCS §§ 2251 et seq.] (except for sections 2257 and 2257A [18
USCS §§ 2257 and 2257A]),
or 117 [18
USCS §§ 2421 et seq.] (involving a minor victim), as a part of
a series of felony violations constituting three or more separate incidents and
involving more than one victim, and commits those offenses in concert with three
or more other persons.
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18 U.S.C. § 2256 (2008)
§ 2256. DEFINITIONS FOR CHAPTER
For the purposes of this chapter [18
USCS §§ 2251 et seq.], the term--
(1) "minor" means any person under the age of eighteen
years;
(2) (A) Except as provided in subparagraph (B), "sexually
explicit conduct" means actual or simulated--
(i) sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic
abuse; or
(v) lascivious exhibition
of the genitals or pubic area of any person;
(B) For purposes of subsection 8(B) of this section, "sexually
explicit conduct" means--
(i) graphic sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex, or lascivious simulated sexual intercourse
where the genitals, breast, or pubic area of any person is exhibited;
(ii) graphic or lascivious
simulated;
(I) bestiality;
(II) masturbation;
or
(III) sadistic
or masochistic abuse; or
(iii) graphic or simulated
lascivious exhibition of the genitals or pubic area of any person;
(3) "producing" means producing, directing, manufacturing,
issuing, publishing, or advertising;
(4) "organization" means a person other than an individual;
(5) "visual depiction" includes undeveloped film
and videotape, data stored on computer disk or by electronic means which is capable
of conversion into a visual image, and data which is capable of conversion into
a visual image that has been transmitted by any means, whether or not stored
in a permanent format;
(6) "computer" has the meaning given that term in
section 1030 of this title
[18 USCS § 1030];
(7) "custody or control" includes temporary supervision
over or responsibility for a minor whether legally or illegally obtained;
(8) "child pornography" means any visual depiction,
including any photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct, where--
(A) the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image,
computer image, or computer-generated image that is, or is indistinguishable
from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted,
or modified to appear that an identifiable minor is engaging in sexually explicit
conduct.
(9) "identifiable minor"--
(A) means a person--
(i)
(I) who was
a minor at the time the visual depiction was created, adapted, or modified; or
(II) whose
image as a minor was used in creating, adapting, or modifying the visual depiction;
and
(ii) who is recognizable
as an actual person by the person's face, likeness, or other distinguishing characteristic,
such as a unique birthmark or other recognizable feature; and
(B) shall not be construed to require proof of
the actual identity of the identifiable minor.
(10) "graphic", when used with respect to a depiction
of sexually explicit conduct, means that a viewer can observe any part of the
genitals or pubic area of any depicted person or animal during any part of the
time that the sexually explicit conduct is being depicted; and
(11) the term "indistinguishable" used with respect
to a depiction, means virtually indistinguishable, in that the depiction is such
that an ordinary person viewing the depiction would conclude that the depiction
is of an actual minor engaged in sexually explicit conduct. This definition does
not apply to depictions that are drawings, cartoons, sculptures, or paintings
depicting minors or adults.
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18 U.S.C. § 2258A (2008)
§ 2258A. REPORTING REQUIREMENTS
OF ELECTRONIC COMMUNICATION SERVICE PROVIDERS AND REMOTE COMPUTING
SERVICE PROVIDERS
(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, obtains actual knowledge of any facts
or circumstances described in paragraph (2) shall, as soon as reasonably possible--
(A) provide to the CyberTipline of the National
Center for Missing and Exploited Children, or any successor to the CyberTipline
operated by such center, 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) make a report of such facts or circumstances
to the CyberTipline, or any successor to the CyberTipline operated by such center.
(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 [18
USCS § 2251, 2251A, 2252, 2252A, 2252B,
or 2260]
that involves child pornography; or
(B) section 1466A [18
USCS § 1466A].
(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.
(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).
(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).
(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).
(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.
(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).
(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) [18
USCS § 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 [18
USCS § 2258C].
(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) [18
USCS § 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 [18
USCS § 2703].
State Laws
It is illegal to possess, produce, and/or distribute child pornography
in all 50 states and the District of Columbia.
For information regarding your state’s laws, please contact your
state government’s website or the agency listed below.
The National Center for Prosecution of Child Abuse
American Prosecutors Research Institute
Suite 110
44 Canal Center Plaza
Alexandria, VA 22314
Telephone: 703-549-9222
Fax: 703-836-3195
http://www.ndaa.org/apri/index.html
Please note that we provide this information as a public service. The
National Center for Missing & Exploited Children does not sponsor
or endorse this group.
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