PROTECT Act of 2003
Encyclopedia
The PROTECT Act of 2003 is a United States law with the stated intent of preventing child abuse
. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today".
The PROTECT Act incorporates the Truth in Domain Names Act (TDNA) of 2003 (originally two separate Bills, submitted by Senator Orrin Hatch
and Congressman Mike Pence
), codified at 18 U.S.C. § 2252(B)(b).
For the purposes of this law, illicit sexual conduct includes commercial sex with anyone under 18, and non-commercial sex with persons under 16 when there is at least a four-year age difference or the person is under 12 years of age. Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.
The PROTECT Act mandated that the United States Attorney General
promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition
has filed a lawsuit against the United States Department of Justice
claiming the 2257 Regulations are unconstitutional.
The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996
had been ruled unconstitutional by the U.S. Supreme Court
in 2002. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test
, which was not an element of the 1996 law.
The act was signed into law by President
George W. Bush
on April 30, 2003.
On April 6, 2006, in United States v. Williams
, the Eleventh Circuit Court of Appeals
ruled that one component of the PROTECT ACT, the "pandering provision" codified at (a)(3)(B) of the United States Code
, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly
The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.
The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.
The first conviction of a person found to have violated the sections of the act relating to virtual child pornography, Dwight Whorley of Virginia, was upheld in a 2-1 panel decision of the Fourth Circuit Court of Appeals in December 2008. This was in apparent contradiction to a previous U.S. Supreme Court
ruling that stated virtual child pornography was protected free speech.
Child abuse
Child abuse is the physical, sexual, emotional mistreatment, or neglect of a child. In the United States, the Centers for Disease Control and Prevention and the Department of Children And Families define child maltreatment as any act or series of acts of commission or omission by a parent or...
. "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today".
The PROTECT Act incorporates the Truth in Domain Names Act (TDNA) of 2003 (originally two separate Bills, submitted by Senator Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
and Congressman Mike Pence
Mike Pence
Michael Richard "Mike" Pence is the U.S. Representative for Indiana's , and previously the , serving since 2001. The 6th district covers much of Eastern Indiana. He is a member of the Republican Party....
), codified at 18 U.S.C. § 2252(B)(b).
Overview
The law has the following effects:- Provides for mandatory life imprisonment of sex offenses against a minor if the offender has had a prior conviction of abuse against a minor, with some exceptions.
- Establishes a program to obtain criminal history background checks for volunteer organizations.
- Authorizes wiretapping and monitoring of other communications in all cases related to child abuse or kidnappingKidnappingIn criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
. - Eliminates statutes of limitationsStatute of limitationsA statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
for child abduction or child abuse. - Bars pretrial release of persons charged with specified offenses against or involving children.
- Assigns a national AMBER AlertAMBER AlertAn AMBER Alert or a Child Abduction Emergency is a child abduction alert bulletin in several countries throughout the world, issued upon the suspected abduction of a child, since 1996...
Coordinator. - Implemented Suzanne's Law. Named after Suzanne Lyall, a missing college student of the University of New York at Albany, the law eliminates waiting periods before law enforcement agencies will investigate reports of missing personMissing personA missing person is a person who has disappeared for usually unknown reasons.Missing persons' photographs may be posted on bulletin boards, milk cartons, postcards, and websites, along with a phone number to be contacted if a sighting has been made....
s ages 18–21. These reports are also filed with the NCIC. - Prohibits computer-generated child pornographyChild pornographyChild pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code). - Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the Miller testMiller testThe Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
of being obscene, OR are engaged in sex acts that are deemed to meet the same obscene condition. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors). - Maximum sentence of 5 years for possession, 10 years for distribution.
- Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad, with or without the intent of engaging in such sexual misconduct.
- Incorporated other proposed legislation existing at the time as:
- the Code Adam Act of 2003, (Title III, Subtitle D)
- the Truth in Domain Names proposed language (Title V, Subtitle B)
- the Secure Authentication Feature and Enhanced Identification Defense Act of 2003, also cited as the SAFE ID Act, (Title VI, Section 607.)
- the Illicit Drug Anti-Proliferation Act of 2003Illicit Drug Anti-Proliferation ActThe Illicit Drug Anti-Proliferation Act of 2003 is a United States federal law enacted as a rider within the PROTECT Act on April 30, 2003. A substantially similar Act was proposed during the previous Congress as the Reducing Americans' Vulnerability to Ecstasy Act .-Legislative history:The RAVE...
(Title VI, Section 608.)
For the purposes of this law, illicit sexual conduct includes commercial sex with anyone under 18, and non-commercial sex with persons under 16 when there is at least a four-year age difference or the person is under 12 years of age. Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.
The PROTECT Act mandated that the United States Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition
Free Speech Coalition
The Free Speech Coalition is a non-profit trade association of the pornography and adult entertainment industry in the United States...
has filed a lawsuit against the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
claiming the 2257 Regulations are unconstitutional.
The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996
Child Pornography Prevention Act of 1996
The Child Pornography Prevention Act of 1996 was a United States federal law to restrict child pornography on the internet, including virtual child pornography....
had been ruled unconstitutional by the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in 2002. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
, which was not an element of the 1996 law.
The act was signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on April 30, 2003.
On April 6, 2006, in United States v. Williams
United States v. Williams
United States v. Williams, 553 U.S. 285 , was a decision by the Supreme Court of the United States that a federal statute prohibiting the "pandering" of child pornography did not violate the First Amendment to the United States Constitution, even if a person charged under the code did not in fact...
, the Eleventh Circuit Court of Appeals
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
ruled that one component of the PROTECT ACT, the "pandering provision" codified at (a)(3)(B) of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly
advertises, promotes, presents, distributes, or solicits through the mails, 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.
The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.
The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.
The first conviction of a person found to have violated the sections of the act relating to virtual child pornography, Dwight Whorley of Virginia, was upheld in a 2-1 panel decision of the Fourth Circuit Court of Appeals in December 2008. This was in apparent contradiction to a previous U.S. Supreme Court
Ashcroft v. Free Speech Coalition
Ashcroft v. Free Speech Coalition, , struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California...
ruling that stated virtual child pornography was protected free speech.
External links
- Text of the Act at GovTrackGovTrackGovTrack.us is a website developed by then-student Joshua Tauberer who launched it as a hobby. It enables its users to track the bills and members of the United States Congress. Users can add trackers to certain bills. The website collects data on Congress members, allowing the users to check...
- Text of the Act at THOMASTHOMASTHOMAS is the database of United States Congress legislative information. It is operated by the Library of Congress and was launched in January 1995 at the inception of the 104th Congress...
- Text of 11th Circuit decision in United States v. Williams
- Legislative history at GovTrackGovTrackGovTrack.us is a website developed by then-student Joshua Tauberer who launched it as a hobby. It enables its users to track the bills and members of the United States Congress. Users can add trackers to certain bills. The website collects data on Congress members, allowing the users to check...