By Kirsten Murphy, Silha Fellow
In a reaction to the U.S. Supreme Court's ruling on April 16, 2002 that it is unconstitutional under the First Amendment to ban the production, possession or distribution of computer-generated child pornography (Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002); see also Spring 2002 Bulletin, "Supreme Court Strikes Down Virtual Child Pornography Law"), the House passed HR 4623, the Child Obscenity and Pornography Prevention Act of 2002, on June 25. The bill amends the 1996 Child Pornography Protection Act (CPPA), 18 U.S.C. section2256.
Representative Lamar Smith (R-TX) who sponsored the bill, said that HR 4623 "reaffirms the ban on child pornography in a manner that can withstand constitutional review," according to a report in Tech Law Journal.
In drafting the bill, supporters of the bill drew on to Justice Thomas' concurring opinion in Ashcroft v. FSC. Thomas wrote, "[T]echnology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children."
Section 2256 of the CPPA contains definitions. Paragraph 8 specifically defines child pornography as "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 . . . . " HR 4623 will amend clause (B), which currently states: "such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct" to read instead "such visual depiction is a computer image or computer-generated image that is, or is nearly indistinguishable . . . from that of a minor engaging in sexually explicit conduct," encompassing the capability of computers to reproduce realistic-looking images.
Attorney General John Ashcroft urged the Senate to vote on HR 4623 as soon as possible, saying that the bill "will strengthen the ability of law enforcement to protect children from abuse and exploitation."