A compromise package of "Amber Alert" child protection legislation hammered out by a House-Senate negotiating team - and still including amendments against fake-to-porn-sites domain names and virtual child porn - passed the House April 10. But the compromise package is still said to face an uncertain Senate fate, despite the Republican majority's pushing to get it passed and onto President Bush's desk before Easter.
The compromise package still includes an amendment introduced last month in the House, that would make it two years behind bars and an undisclosed amount of a fine for anyone using a non-porn Internet domain name to "deceive a person into viewing material constituting obscenity." And it includes another amendment barring virtual child porn in hand with pornographic depictions of actual children.
"There is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children," said a conference report that advanced the compromise package, which said last year's Supreme Court shutdown of the Child Pornography Prevention Act [Ashcroft v. Free Speech Coalition] as too broad to pass First Amendment muster has since had an "adverse effect" on government efforts to stop child porn.
"Nevertheless, technical advances since [1982] have led many criminal defendants to suggest that the images of child pornography they possess are not those of real children," the conference report continued, "insisting that the government prove beyond a reasonable doubt that the images are not computer generated."
Those and other amendments, including provisions critics say would end federal judges' sentencing discretion, prompted some Democrats to accuse Republicans of "kidnapping the Amber Alert bill" for "partisan and wholly unrelated goals gutting judicial sentencing guidelines," as Senate Minority Leader Tom Daschle (D-SD) told reporters.
House Judiciary Committee chairman James Sensenbrenner (R-Wis.) dismissed those objections and called Amber Alert the "most important and far-reaching child protection legislation in the past twenty years." Rep. Martin Frost (D-Texas), who had backed a stand-alone Amber Alert bill, called the compromise package better than waiting longer to get the national missing-children network passed into law, but he also objected to what he called "needless controversial provisions which will cause some members to vote against it."
House Republicans said the sentencing guideline language applied only to child sex crimes, but Democrats attacked what they called a "hastily written" amendment by Senate Judiciary Committee chairman Orrin Hatch (R-Utah), an amendment Reuters said could apply to almost all federal crimes.
In fact, Chief Justice William H. Rehnquist of the Supreme Court - usually considered the leader of the court's conservative contingency - agrees. He wrote a letter saying those sentencing guidelines "would seriously impair the ability of courts to impose just and responsible sentences" to Sen. Patrick Leahy (D-Vt.).
The fake-to-porn-domain amendment, however, could face a little less opposition. As AVN.com reported in March, when the original amendment was passed by the House, it's one thing to bar Websites from what amounts to tricking unwilling or unsuspecting Web surfers into visiting cyberporn sites, but as First Amendment attorney Lawrence G. Walters said, enforcement problems have to be addressed, including who decides what is the "appropriate" adult Website description and what is a "misleading" description.
"[And] the law is potentially applicable to all domain names, no matter where they're hosted," Walters had said, "and I don't know how the United States will position itself as a worldwide enforcer of proper domain names." Walters said there were cases where this kind of law was valuable, but giving the government the right to jail people for it amounted to "just another silver bullet to aim at the adult industry."
