[Senate Hearing 108-920] [From the U.S. Government Publishing Office] S. Hrg. 108-920 PORNOGRAPHY ON THE INTERNET ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS FIRST SESSION ---------- SEPTEMBER 9 AND OCTOBER 15, 2003 ---------- Serial No. J-108-38 ---------- Printed for the use of the Committee on the Judiciary PORNOGRAPHY ON THE INTERNET S. Hrg. 108-920 PORNOGRAPHY ON THE INTERNET ======================================================================= HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED EIGHTH CONGRESS FIRST SESSION __________ SEPTEMBER 9 AND OCTOBER 15, 2003 __________ Serial No. J-108-38 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 93-014 WASHINGTON DC: 2008 --------------------------------------------------------------------- For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 COMMITTEE ON THE JUDICIARY ORRIN G. HATCH, Utah, Chairman CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas JOHN EDWARDS, North Carolina Bruce Artim, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- TUESDAY, SEPTEMBER 9, 2003 STATEMENTS OF COMMITTEE MEMBERS Page Feinstein, Hon. Dianne, a U.S. Senator from the State of California..................................................... 5 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1 prepared statement........................................... 121 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2 prepared statement........................................... 156 Schumer, Hon. Charles E., a U.S. Senator from the State of New York, prepared statement and attachment........................ 193 WITNESSES Barr, William, Executive Vice President and General Counsel, Verizon Communications, Washington, D.C........................ 33 Callaway, Robbie, Chairman, National Center for Missing and Exploited Children, Alexandria, Virginia....................... 11 Hess, Stephen, Associate Academic Vice President for Information Technology, Office of Information Technology, University of Utah, Salt Lake City, Utah..................................... 14 Jacobson, Douglas W., President and Chief Technology Officer, Palisade Systems, Incorporated, Ames, Iowa..................... 16 Koontz, Linda, Director, Information and Management Issues, General Accounting Office, Washington, D.C..................... 6 Malcolm, John, Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C............... 7 Morris, Alan, Executive Vice President, Sharman Networks Limited, Washington, D.C................................................ 13 Peters, Marybeth, Register of Copyrights, U.S. Copyright Office, Washington, D.C................................................ 36 Sherman, Cary, President and General Counsel, Recording Industry Association of America, Washington, D.C........................ 30 Spota, Thomas J., Suffolk County District Attorney, Hauppauge, New York....................................................... 9 QUESTIONS AND ANSWERS Responses of William Barr to questions submitted by Senators Chambliss, Cornyn and Leahy.................................... 43 Responses of Robbie Callaway to questions submitted by Senators Cornyn and Leahy............................................... 49 Responses of Stephen Hess to questions submitted by Senator Cornyn......................................................... 51 Responses of Douglas W. Jacobson to questions submitted by Senators Graham and Leahy...................................... 54 Responses of Linda Koontz to questions submitted by Senators Cornyn and Leahy............................................... 57 Responses of John Malcolm to questions submitted by Senators Graham, Cornyn, Leahy and Hatch................................ 63 Responses of Marybeth Peters to questions submitted by Senators Cornyn and Leahy............................................... 74 Responses of Thomas J. Spota to questions submitted by Senators Graham, Hatch and Leahy........................................ 80 Questions submitted to Alan Morris by Senators Hatch, Leahy, Graham, and Cornyn (Note: At the time of printing, after several attempts to obtain responses to the written questions, the Committee had not received any communication from the witness.)...................................................... 83 Questions submitted to Cary Sherman by Senators Leahy, Chambliss and Cornyn (Note: At the time of printing, after several attempts to obtain responses to the written questions, the Committee had not received any communication from the witness.) 98 SUBMISSIONS FOR THE RECORD Barr, William, Executive Vice President and General Counsel, Verizon Communications, Washington, D.C., statement............ 101 Callaway, Robbie, Chairman, National Center for Missing and Exploited Children, Alexandria, Virginia, statement............ 113 Department of Justice, William E. Moschella, Assistant Attorney General, Office of Legislative Affairs, letter................. 119 Hess, Stephen, Associate Academic Vice President for Information Technology, Office of Information Technology, University of Utah, Salt Lake City, Utah, statement.......................... 124 Jacobson, Douglas W., President and Chief Technology Officer, Palisade Systems, Incorporated, Ames, Iowa, statement.......... 130 Koontz, Linda, Director, Information and Management Issues, General Accounting Office, Washington, D.C., statement......... 135 Malcolm, John, Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., statement... 159 Morris, Alan, Executive Vice President, Sharman Networks Limited, Washington, D.C., statement.................................... 170 Peters, Marybeth, Register of Copyrights, U.S. Copyright Office, Washington, D.C., statement.................................... 178 Pitts, Hon. Joe, a Representative in Congress from the State of Pennsylvania, statements....................................... 191 Sherman, Carry, President and General Counsel, Recording Industry Association of America, Washington, D.C., statement............ 196 Spota, Thomas J., Suffolk County District Attorney, Hauppauge, New York, statement............................................ 213 WEDNESDAY, OCTOBER 15, 2003 STATEMENTS OF COMMITTEE MEMBERS Page Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 221 prepared statement........................................... 289 Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 215 prepared statement........................................... 292 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 307 WITNESSES Buchanan, Mary Beth, U.S. Attorney, Western District of Pennsylvania, Pittsburgh, Pennsylvania......................... 225 Cline, Victor, Emeritus Professor, University of Utah, Sale Lake City, Utah..................................................... 235 Flores, J. Robert, Administrator, Office of Juvenile Justice and Delinquency Prevention, Department of Justice, Washington, D.C. 219 Malcolm, John G., Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C............... 217 Maxwell, Lawrence E., Inspector in Charge, Fraud and Dangerous Mail Investigations, U.S. Postal Inspection Service, Washington, D.C................................................ 223 Takeshita, Steven, Officer in Charge, Pornography Unit, Organized Crime and Vice Division, Los Angeles Police Department, Los Angeles, California............................................ 237 Taylor, Bruce A., President and Chief Counsel, National Law Center for Children and Families, Fairfax, Virginia............ 232 QUESTIONS AND ANSWERS Responses of Mary Beth Buchanan to questions submitted by Senator Leahy.......................................................... 243 Responses of J. Robert Flores to questions submitted by Senator Leahy.......................................................... 247 Responses of John Malcolm to questions submitted by Senator Leahy 253 A question submitted by Senator Leahy to Bruce A. Taylor (Note: The response was not available at the time of printing.)....... 260 SUBMISSIONS FOR THE RECORD Buchanan, Mary Beth, U.S. Attorney, Western District of Pennsylvania, Pittsburgh, Pennsylvania, statements............. 261 Cline, Victor, Emeritus Professor, University of Utah, Sale Lake City, Utah, statement.......................................... 270 Flores, J. Robert, Administrator, Office of Juvenile Justice and Delinquency Prevention, Department of Justice, Washington, D.C., statement................................................ 273 Hughes, Donna Rice, President, Enough Is Enough, Great Falls, Virginia, statement............................................ 294 Malcolm, John G., Deputy Assistant Attorney General, Criminal Division, Department of Justice, Washington, D.C., statement... 309 Maxwell, Lawrence E., Inspector in Charge, Fraud and Dangerous Mail Investigations, U.S. Postal Inspection Service, Washington, D.C., statement.................................... 321 Takeshita, Steven, Officer in Charge, Pornography Unit, Organized Crime and Vice Division, Los Angeles Police Department, Los Angeles, California, statement................................. 329 Taylor, Bruce A., President and Chief Counsel, National Law Center for Children and Families, Fairfax, Virginia, statement. 333 PORNOGRAPHY, TECHNOLOGY, AND PROCESS: PROBLEMS AND SOLUTIONS ON PEER- TO-PEER NETWORKS ---------- TUESDAY, SEPTEMBER 9, 2003 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:10 p.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, Chairman of the Committee, presiding. Present: Senators Hatch, Leahy, Feinstein, Schumer, and Durbin. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Chairman Hatch. Good afternoon. Did they get everybody from outside in? We can put more in who can stand. I think we ought to get as many people in as we can. In this hearing, we will continue to examine the explosively popular and promising technology which counts among its users millions and millions of teens and pre-teens worldwide, and that is peer-to-peer sharing networks. At our last hearing on peer-to-peer networks, we examined some of the personal and institutional security risks associated with P2P usage. Today's hearing focuses on a different set of issues and the questions they raise that are equally pressing. The first panel will address an issue that is very deeply disturbing to me, and I know to other lawmakers as well, the presence on peer-to-peer networks of enormous quantities of pornographic materials, including child pornography, and the great risk of inadvertent exposure to these materials by young P2P users. This is an issue of critical importance to parents, who must be educated about these risks and equipped to control or eliminate them. The second panel will address the information subpoena provisions of the Digital Millennium Copyright Act, and I will have more to say about that issue after we hear from our first panel. I know that we here in Congress, along with all upstanding Americans, agree on this: Child pornography is inherently repulsive, inherently victimizing, and intolerable in any form. It is both an effect and cause of sickness. Perverts and pedophiles not only use child pornography to whet their sick desires, but also to lure our defenseless children into unspeakable acts of sexual exploitation. My commitment, Senator Leahy's commitment, and this Congress's commitment to eradicating child pornography was evident in the passing of the PROTECT Act, which Senator Leahy and I cosponsored and helped put through. As we are about to hear, peer-to-peer networks provide a new and growing means for distribution of these disgraceful materials. They also pose unique challenges for law enforcement, which is trying to combat child pornography, and, of course, unique and unacceptable dangers to our children. The following video presentation conveys the depth and urgency of these dangers. So I would like to complete my opening remarks, before I turn to Senator Leahy, with a showing of this video which was produced by the RIAA, the Recording Industry Association of America, in collaboration with the Suffolk County, New York, District Attorney's Office, which is represented today, the Los Angeles Council on Child Abuse and Neglect, and Media Defender, a security company that has testified repeatedly before Congress and before this Committee. I should warn you that some of the language in this video is graphic and the content is disturbing. But this is just an example of what our children are witnessing on peer-to-peer networks, and we need to know about it. An edited transcript will be prepared for the record. [The prepared statement of Senator Hatch appears as a submission for the record.] So if we could have the video presentation, then I will yield to Senator Leahy for his remarks. [Videotape shown. Being retained in Committee files.] Chairman Hatch. Senator Leahy, we will turn to you. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Senator Leahy. Thank you, Mr. Chairman. At the first Committee hearing on peer-to-peer networks back in June, we considered the significant dangers that file- sharing can pose to users' privacy and the security of their computers, the fact that they can take up everything from your health records out of your computer, to your children's school reports, and so forth. Today, we are going to explore possible solutions to some of the problems raised by peer-to-peer networks and online file-sharing. I really feel that unless we find some of these solutions, peer-to-peer is never going to realize its enormous potential to build online communities, to enhance network learning, to make unprecedented amounts of material, educational and entertaining, available worldwide. These are all the good things that can be done in peer-to-peer sharing, certainly not what is seen by any of us in this room in those things we have just seen in the video. I believe that peer-to-peer has the potential to revolutionize the way we share our information. But like any technology, it can be and is being abused. Peer-to-peer networks can delve into people's private records, as I said earlier. You share music or whatever else and you may end up also picking up everybody's tax returns or their Social Security numbers, their credit card numbers or anything else. Of course, we know that it is used often to illegally share copyrighted material. But I think even beyond that, the most disturbing thing is what we have just seen in the Chairman's video. Peer-to-peer networks can be used to distribute child pornography and to make all sorts of pornography available to unsuspecting children, something, Mr. Spota, your office has looked into a great deal. If peer-to-peer networks are going to be part of our culture, they have to respond to these problems. We certainly can't allow those who purposefully exploit network file-sharing to harm children--we can't allow them to go unpunished; we really can't. I think that is something everybody on this Committee of either party will agree to. As a father, and now blessed to be a grandfather, I find child pornography despicable. There is no Senator up here who disagrees with this. On this Committee, the Chairman and I working together--at times when I was Chairman and times when he has been Chairman, we have worked together to take strong steps to protect our children from pornography, and we will do everything possible to combat child pornography. As a former prosecutor, I want to see that law enforcement has effective tools for the identification and prosecution of individuals who make, use, and traffic in this material. Pornography, especially child pornography, is prevalent on peer-to-peer networks. As much as 42 percent of peer-to-peer requests are for pornography. A recent GAO study on that, I believe, is a wake-up call for our country. They found that simple keyword searches on a peer-to-peer network turned up hundreds of pornographic images of children. In fact, when GAO did that search, they found that 40 percent of these searches turned up child pornography. The National Center for Missing and Exploited Children, which I might say continues to do outstanding and inspirational work to protect all of our children, reports that there has been a four-fold increase in pornography on peer-to-peer networks in just 1 year. I think I am right on that, am I not, Mr. Callaway? Mr. Callaway. Yes. Senator Leahy. Moreover, peer-to-peer networks don't simply allow the distribution of child pornography. Through the use of instant messaging, what I worry about very much is that it can be used to lure children into meetings with sexual predators. So far, the peer-to-peer networks are not only turning a blind eye to this problem, but in many cases they are specifically designed so that parents are unable to keep their children off the network with a traditional firewall. Every parent ought to be able to have a traditional firewall so they can keep their children off this. Every parent would want to. In addition, what few protections are available are designed so they can be easily circumvented by a child regardless of their parent's intentions. After all, a teenage child is probably far more knowledgeable of how to use that computer than the parent is. More disturbingly, the networks are actively hindering law enforcement efforts to crack down on child pornography. Even though it has risen, as I said, four-fold between 2000 and 2002, arrests for child pornography have dropped dramatically in recent years. We have heard that one, and perhaps the only reason for this is that peer-to-peer networks have changed their systems to allow their users to remain anonymous. In their zeal to allow illegal file-sharing, the networks have made it far too difficult for law enforcement to track down child pornography, and that has to stop. Believe me, if it is possible for legislation to do it, we will. So I look forward to hearing from the outstanding group of experts who are here today on the steps that can be taken to stop child pornography. It is best solved by the people who understand it and deal with it on a daily basis. We can write all kinds of legislation here, but in a fast-changing world with the science, electronics and everything else changing so quickly, it is the people who deal with it everyday that, if they want to, can stop this because they are the ones that have the tools. I would like to see a private sector solution to this very serious problem. Make no mistake, it has to stop, and if it can't stop by the private sector doing it, then we will have to take steps to make it stop. One of the panels will look at one of the solutions to online file-sharing that we enacted 5 years ago as a part of the Digital Millennium Copyright Act. Senator Hatch and I worked for months, actually for years, I think, on that one-- Chairman Hatch. Five years. Senator Leahy. --to get tools in the fight against online copyright infringement. At the time we were drafting the DMCA, the recording industry, the Internet service providers, and others said they were having trouble identifying individuals who might be illegally sharing copyrighted materials online. The parties came together and they determined that the best solution was to allow copyright-holders to subpoena the information, and Section 512(h) codified that. Now, I understand that this section is being used to subpoena information about individual users who may be sharing copyrighted materials, but who are not using the ISP system or network to store it. In short, it is being used to combat the anonymous use of peer-to-peer networks. There can be little doubt that use of the 512(h) subpoena raises legitimate concerns for some, such as notice to the end user, and so on. Again, the people working on this are the ones best able to solve it. I would say there is somebody here from the Department of Justice. I have recently sent a letter to the Attorney General. We are still waiting for the regulations on the internet service providers' duty to report child pornography to the National Center for Missing and Exploited Children, and I would urge the Attorney General and the Justice Department to get us those regulations. It could be a powerful tool. Mr. Chairman, I have taken longer than usual, but you and I have worked on this for so many years and it is aggravating in trying to find a solution. [The prepared statement of Senator Leahy appears as a submission for the record.] Chairman Hatch. It is an important subject and I appreciate your statement, Senator Leahy. Our first panel of witnesses is comprised of seven witnesses and they are Linda Koontz, the Director of Information Management Issues, United States General Accounting Office; John Malcolm, Deputy Assistant Attorney General of the Criminal Division, U.S. Department of Justice; Thomas Spota, the District Attorney for Suffolk County, New York; Robbie Callaway, Chairman of the National Center for Missing and Exploited Children; Alan Morris, Executive Vice President of Sharman Networks, distributor of Kazaa Media Desktop; Stephen Hess, Associate Academic Vice President for Information Technology at our own University of Utah; and Douglas Jacobson, President and Chief Technology Officer of Palisade Systems. I am grateful to have all of you here. I would like to thank Mr. Malcolm for kindly agreeing to appear on this panel along with our private sector witnesses rather than on his own panel. That will expedite this hearing quite a bit. I would like to thank all of you for taking the time to be with us here today to discuss these important issues. Before we begin, Senator Feinstein, do you have any comments you would care to make? STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator Feinstein. I have just been reading the GAO report on this subject, Mr. Chairman. Thank you. I must say I am really astounded at the film we just saw, the use of Pokemon to be able to pull up child pornography, the use of the words ``Harry Potter'' to be able to pull up child pornography. It seemed to me that one of the people in this really had the solution, and that is that the operators have a responsibility to see that this doesn't happen. I think what I have heard so much of is that, oh, nobody can control the Internet. It is like telephones; there can be no restrictions, no regulations. But it is really not like telephones. I think this piece of film that you showed, Mr. Chairman, was really worthy of oversight. It seems to me that we ought to find a way to prohibit, perhaps on the basis of copyright, use of words like ``Pokemon.'' I am sure the copyright owners would not want Pokemon used that way, nor would Harry Potter's copyright want Harry Potter used that way. I don't know about the prohibition of downloading of these things, but I think we ought to look into it, and I think we ought to perhaps try to prohibit free access of copyrighted material. But I think one thing is clear that this is like a growing cancer, and increasingly when you have people arrested on charges of child molestation, police are finding in their rooms electronic pornography, as well as other pornography. So there is a nexus increasingly, I believe, between the two. I think the argument has been made throughout the years that what this does is reinforce a person of low maturity with the ability to commit this kind of act in real life. So I think it is a very real and considerable danger to our young people and that we have an obligation. I would just like to offer my help to both you and Senator Leahy in this regard. Chairman Hatch. Well, thank you so much, Senator. Now, on your microphone there is a button right in front. When you push it, it turns a little bit red, so that will mean you are on. So remember to push it before you start speaking. We will turn to you, Ms. Koontz, first. STATEMENT OF LINDA KOONTZ, DIRECTOR, INFORMATION AND MANAGEMENT ISSUES, GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C. Ms. Koontz. Mr. Chairman, Senator Feinstein, thank you for inviting us to discuss our work on the availability of pornography on peer-to-peer networks. We provided the results of this work in a report to the House Committee on Government Reform in February of 2003. This report contains additional details on our methodology and our results, and I would ask to submit it for the record. Chairman Hatch. Without objection. Ms. Koontz. To summarize, I will provide some background on peer-to-peer networks and discuss the ease of access to child pornography on peer-to-peer networks and the risk of inadvertent exposure of juvenile users of peer-to-peer networks to pornography, including child pornography. Just to briefly review some of how peer-to-peer networks are configured, our first chart shows the two main models of peer-to-peer networks. On the left is the centralized model. A centralized server or broker maintains a directory of shared files stored on the computers of users and directs traffic between the users. The centralized model was employed by Napster, the original peer-to-peer network. Because much of the material traded was copyrighted, Napster, as the broker of these exchanges, was vulnerable to legal challenges which led to its demise last year. The right side of the chart shows the decentralized model, which is currently used by the most popular peer-to-peer networks. In this model, individuals locate each other and interact directly. In work we conducted earlier this year, we found that child pornography, as well as other types of pornography, is widely available and accessible through peer-to-peer networks. We used Kazaa, a popular peer-to-peer file-sharing program, to search for image files using 12 keywords known to be associated with child pornography on the Internet. As shown on our chart, of over 1,200 items identified in our search, about 42 percent of the file names were associated with child pornography images, and about 35 percent were associated with adult pornography. In another Kazaa search, we worked with the Customs CyberSmuggling Center to use three keywords to search for and download child pornography image files. As you can see on our next chart, this search identified 341 image files, of which about 44 percent were classified as child pornography and 29 percent as adult pornography. More disturbingly, we found that there is a significant risk that juvenile users can be inadvertently exposed to pornography, including child pornography. In searches on three innocuous words likely to be used by juveniles, we obtained images that included a high proportion of pornography. As you can see on the chart, almost half of the 177 retrieved images were classified as pornography, including a small amount of child pornography. Mr. Chairman, Internet file-sharing programs are rapidly gaining users, and while there are no hard statistics, it is thought that a large proportion of these users are juveniles. These programs provide easy access to pornography, including child pornography. Further, our work shows that such networks put even the youngest users at risk of being inadvertently exposed to pornography. In light of these factors, it will be important for law enforcement to continue to devote effort to peer-to-peer networks and for policymakers to continue to highlight this issue to parents and to the public, and to lead the debate on possible strategies for dealing with it. That concludes my statement. I would be happy to answer questions at the appropriate time. [The prepared statement of Ms. Koontz appears as a submission for the record.] Chairman Hatch. Thank you, Ms. Koontz. Mr. Malcolm, we will turn to you. STATEMENT OF JOHN MALCOLM, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Malcolm. Mr. Chairman, Senator Leahy, Senator Feinstein, thank you for inviting me to testify before you today on this critical topic. The sexual abuse of a child is a horrific act which is often exacerbated by pedophiles who memorialize their repugnant crimes in photographs and videos. Sadly, with increasing frequency, such offenders are disseminating these grotesque memorials to millions of people over the Internet. Law enforcement must respond to technological advances, eradicating child pornographers from every forum in which they lurk, whether in cyberspace or elsewhere. Thus, I commend you for holding this hearing on the proliferation of child and adult pornography on peer-to-peer networks. In contrast to traditional networks, peer-to-peer networks are less centralized. In fact, they are fluid by design. While a traditional network operates like a bicycle wheel in which a central server computer is the hub that sends out files through the spokes to smaller computers arrayed along the tire, peer- to-peer networks act more like a fisherman's net. Each peer computer is connected to the rest of the peer computers either directly or through one or more intermediary computers. In a P2P network, files are kept not on a central server, but rather on each of the peer computers hooked into the network at any given point in time. Any computer can be utilized to download peer-to-peer software from the Internet and thereby gain access to shared files located on other computers connected to the network. Once the software is installed, peer-to-peer networks can be accessed to transfer virtually anything that can be put into digital form, including pictures, music, or videos. Once the user selects the files he wishes to download, the source and destination peer computers exchange the files directly. Similarly, a user can also elect to share certain files on his own computer with other users on the peer-to-peer network. Given this format, it is very easy and not surprising that this medium has become a hotbed of criminal activity, including the dissemination of child pornography. Congress is well aware that adult pornography is readily available to children on the World Wide Web and is often inadvertently accessed by children using innocuous search terms such as the names of cartoon characters or children's television shows. Indeed, to combat this growing problem, Congress through the PROTECT Act recently enacted a law criminalizing the use of domain names that mislead minors into viewing harmful material. Despite the potency of this new legislation, it does not extend to file names that individuals create for files on their own computers that they choose to share over peer-to-peer networks. Thus, any child who downloads peer-to-peer software and enters an innocuous search term--a pop star, a cartoon character--may be confronted with files containing adult pornography that have been given misleading names. Similarly, by entering fairly blatant terms that are well-known to pedophiles, such as ``child porn,'' ``pre-teen,'' or ``lolita,'' a user, perhaps an unsuspecting child, will receive child pornography that is easy to access and download. Because peer-to-peer networks operate as a diffuse community of computers, the investigation of child pornography offenses in the peer-to-peer context requires a proactive and focused approach by law enforcement. The lack of a central server means that there is no clearinghouse for files and information that can serve as a bottleneck or choke point where law enforcement can gather logged evidence and illegal activity can be cut off. Moreover, the decentralized nature of peer-to-peer networks means that there is no central community in which people chat about their illegal activity. In addition, many peer-to-peer networks do not require individual users to set up accounts with a central authority. Peer-to-peer users can change their names at will and the names that they choose rarely contain true information that would identify them. Nevertheless, just as an individual cannot receive or place a telephone call without a telephone number, every instance of Internet access is associated with an Internet protocol or IP address. Thus, using peer-to-peer software, a law enforcement agent can identify a file containing child pornography and, while downloading that file, identify the IP address of the user who sent it. The agent can then serve the Internet service provider with process and thus ultimately obtain the identity of the person who uploaded that file. Moreover, the seizure of a user's computer will often contain fruitful evidence to use for further investigation. Thus, while it is true that people can do a lot to hide their identities, nobody is truly anonymous who uses a peer-to-peer system. Notably, however, new generations of peer-to-peer file- sharing protocols are promoting for their users even greater anonymity, including the ability to hide behind proxy servers and the like. When this technology comes to fruition, it is going to present significant challenges to law enforcement. While there is no question that there is a lot of pornographic and obscene material on peer-to-peer networks, it is difficult to quantify the percentage of child pornography on peer-to-peer networks. As you have just heard, with search terms, sometimes you get a lot of child pornography if the term is one that a pedophile would use. If you use an innocuous term, you will get less. For reasons that are discussed in greater detail in my written testimony, in fact, while there is a lot of child porn on peer-to-peer networks, purveyors of this material tend to use other mediums such as news groups and Internet relay chat rooms. Nonetheless, the Department of Justice is vigorously committed to prosecuting any child pornographer, no matter what forum they use. The Child Exploitation and Obscenity Section and its high-tech unit and U.S. Attorneys' offices across the country are vigorously involved in that pursuit. Mr. Chairman, I again thank you and this Committee for inviting me to testify here today and I look forward to answering your questions. [The prepared statement of Mr. Malcolm appears as a submission for the record.] Chairman Hatch. Thank you so much. Mr. Spota. Senator Leahy. If I might, Mr. Chairman, urge Mr. Malcolm to get us those regulations from his Department. It would be very, very helpful in this fight. Mr. Malcolm. Yes, sir. Chairman Hatch. Mr. Spota. STATEMENT OF THOMAS J. SPOTA, SUFFOLK COUNTY DISTRICT ATTORNEY, HAUPPAUGE, NEW YORK Mr. Spota. Thank you, Mr. Chairman and members of the Committee. I appreciate the opportunity to appear this afternoon to discuss the issue of child pornography on peer-to- peer file-sharing networks and the efforts of those of us in Suffolk County to combat what we view as a growing concern for law enforcement nationwide. Earlier this year, I was so disturbed by information brought to my attention about the nature and accessibility of child pornography on peer-to-peer networks that I authorized the commencement of an investigation by members of my staff, the D.A.'s office, as well as the Suffolk County Police Department, into Kazaa, a popular file-sharing program. I was amazed that the file-sharing programs used by so many of our children and adolescents to download music were also the repository of some of the most graphic child pornography available today. There is no special code or unique search term required to unlock the key to child pornography in these networks. If you search for songs by artists as popular as Brittany Spears, the Beatles, or Pokemon, if you are looking for any song or any movie with the word ``young'' as part of its title, your search results will most certainly include child pornography. The names of the files are disturbing enough, but a simple click of the mouse is all that is necessary for anyone, including any of our children, to be exposed to the dark, disturbing, and violent world of child sexual abuse. Working in conjunction with the Suffolk County Police Department Computer Crimes Section, the investigation conducted by my office relied upon sophisticated computer technology and, quite frankly, good old-fashioned police work. Numerous grand jury subpoenas were issued to Internet service providers, and based on the information received search warrants were executed upon residents of Suffolk County and computers, CDs, and other storage media were seized. Police officers, who are also forensic computer analysts, evaluated the seized evidence and recovered hundreds of images of child pornography. I then presented evidence to a grand jury that resulted in the indictment of 12 Suffolk County residents for over 180 counts of the possession and promoting of child pornography. The images of child pornography available on peer-to-peer networks are some of the worst seen by law enforcement to date. Included in the images seized by police in our case and the cases being prosecuted by my office are still photographs of very young children engaged in sexual acts with other children and adults, and video clips lasting several minutes of children being subjected to unspeakable acts of sexual violence. Some of those video clips have sound, and in one case, as we saw in the video, there is a child being heard saying ``No, Daddy, stop, no, Daddy,'' in a futile attempt to prevent being raped. In another instance, we saw very clearly the diapers of a child being removed before the child's father or whoever it was sexually manipulated that infant. To say that this is disturbing is an understatement. Not only does every image represent the sexual assault of a helpless child, but the use of a medium such a peer-to-peer network allows the assault to be broadcast worldwide and revictimizes the child each and every time the image is viewed. Today, it is not uncommon for a child to report to us, to law enforcement, that their abuse had been video-recorded, and later for those very same images to turn up in the forensic examination of a computer in a totally unrelated case. Thus, the child's abuse will be available forever on the Internet or on a peer-to-peer network. And how devastating this must be for a child to know or come to understand that his or her victimization is available to the world in perpetuity. Congress should act to make peer-to-peer file networks and their operators responsible for the child pornography available to their users. Law enforcement activities can serve to punish offenders and educate the community, but they will never be enough to ultimately stem the tide. We must do more to educate and inform American parents. Seasoned child abuse prosecutors in my office and elsewhere were unaware of the capability of Kazaa to file-share child pornography until we began our investigation. I wonder how many other parents are unknowingly putting their children at risk by allowing them access to a program they believe is harmless. Americans employ a rating system for movies and TV shows to protect children. Compact discs contain parental advisories. Kazaa and other programs like it have no such warnings and seem to have total immunity, and I say this is wrong. As far as I am aware, I am the only district attorney on a State level to investigate and prosecute users of a peer-to- peer file-sharing network for the possession and promotion of child pornography. The case has generated considerable interest from other State law enforcement agencies and I hope they will initiate similar prosecutions. Our investigation is continuing in the hopes of identifying some of the perpetrators of these horrific acts, and the children so that they can be protected from further abuse. As a standard protocol, the images will be forwarded to the National Center for Missing and Exploited Children to aid us in this endeavor. I thank you again for inviting me to speak to you on this important issue. [The prepared statement of Mr. Spota appears as a submission for the record.] Chairman Hatch. Well, thank you, Mr. Spota. We appreciate the efforts you are making in this regard. Mr. Callaway, we are always happy to welcome you before the Committee, so we will turn to you at this time. STATEMENT OF ROBBIE CALLAWAY, CHAIRMAN, NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN, ALEXANDRIA, VIRGINIA Mr. Callaway. Thank you. It is good to see you, Mr. Chairman, Senator Leahy, Senator Feinstein. It is good to be back in front of you on this tough issue. If I could, if it wouldn't break protocol, I would ask for a round of applause for this district attorney, for that testimony and what he has been doing on this issue. We need more like him. [Applause.] Mr. Callaway. The National Center, as you know, has been in the forefront of this issue on child pornography for nearly two decades. You have my formal testimony. I am going to sum it up very quickly. Since 1987, the National Center has operated the National Child Pornography Tipline in partnership with the U.S. Customs Service and U.S. Postal Inspection Service. Since 1998, we have operated the CyberTipline, a 24-hour online mechanism for reporting child pornography and other sexual exploitation crimes, handling 150,000 leads, including just over 1,500 reports regarding child pornography being traded by P2P users. Senator Feinstein and all of you know that I work for Boys & Girls Clubs of America. My volunteer work is the National Center. This is not even what I was going to talk about, but as they talked about the search names, we had a demonstration where they go and look for search names. You talk about Pokemon or you talk about Brittany Spears. If a young boy at the Boys & Girls Club in Salt Lake City were to be going to visit a cousin, let's say, at the Boys & Girls Club in Burlington, Vermont, he might get on the Internet and he might look it up. He might look in one of these file- sharing systems and look up Boys & Girls Clubs to find out if there is a Boys & Girls Club in Vermont. You would be shocked at what comes before you when you look up a Boys & Girls Club. So we are quite concerned about that from our Boys & Girls Club hat as well. The National Center's primary concern regarding file- sharing is that it has become virtually impossible to track down the people who are doing it. From the National Center data and interaction with leading law enforcement investigators, we have concluded that the use of file-sharing programs to trade, distribute, and disseminate child pornography is significant and growing dramatically. Yet, in file-sharing programs, law enforcement lacks the necessary tools to identify and track down many perpetrators. This lack of necessary tools is allowing for major growth among those who distribute illegal child pornography. The National Center is particularly concerned about the inadvertent exposure of children to such content, just as I said, if they were to go to look for Boys & Girls Clubs or if they go to look for Pokemon or whatever. The Center urges parents to get involved and stay involved in what their children are doing on the Internet and on the computers. We can all agree that children who are involved in child pornography are by their very nature of the industry victims of child exploitation and sexual abuse. Ann Burgess, of the Boston College Nursing School, states, and I quote, because I was asked about the effects on children--Ann Burgess says, ``The destructive effects of child sexual abuse can create a number of long-term problems for the child victim, including headaches, stomach aches, and sleeping and eating disorders, psychological reactions of fear and anxiety, depression, mood changes, guilt, shame, social problems with school truancy, declining grades, fighting, sexual problems, preoccupation with sex and nudity, and running away from home.'' All of these are issues that I have testified about to this Committee regarding juvenile justice legislation. ``Substance abuse, gender identity confusion, sexual dysfunction, and social deviant behaviors have also been identified as possible consequences of untreated childhood sexual abuse,'' end of quote. To summarize, the National Center believes the use of peer- to-peer networks for the distribution of pornography is a growing problem and we are asking for your help. Based on our own review of CyberTipline leads and information in our work with leading law enforcement investigators across the country, we are convinced that P2P has become a major growth area for those desiring to trade or distribute illegal child pornography with little risk of identification and prosecution. Peer-to-peer program developers could make great strides in protecting children if they permitted software programmers to allow users to log the origination of all files. We need to make sure that law enforcement has the necessary tools to identify these perpetrators, and use them to identify, arrest, and prosecute, and in so doing protect our children. Mr. Chairman, let's be very clear about my position because some people say, well, why are you doing it, why are you here? Our position is this--and you have heard me say it before--when you make child pornography, you commit a crime. You commit a crime against not only the child involved in the child pornography, but against all God's children. When you view child pornography, you are committing a crime. There is no socially-redeeming value for child pornography anywhere, any time, anywhere in the world. And when you share a file of child pornography, you have committed a crime. We need to be able to prevent child pornography from being made, and we need to be able to prosecute anybody who shares a file of any type of child pornography. Thank you very much. [The prepared statement of Mr. Callaway appears as a submission for the record.] Chairman Hatch. Thank you, Mr. Callaway. We will turn to you, Mr. Morris. STATEMENT OF ALAN MORRIS, EXECUTIVE VICE PRESIDENT, SHARMAN NETWORKS, LIMITED, WASHINGTON, D.C. Mr. Morris. Thank you very much, indeed. Like all other parents in this room, I utterly abhor child pornography and applaud what you just said. I totally agree with that. I would do anything to protect my children from child pornography. Senator Hatch and members of the Committee, when you invited me at the end of last week to come over here, I had no hesitation in jumping on a plane and coming straight over. The issue is important. As you know, I am the Executive Vice President of Sharman. I am responsible particularly for the distribution of licensed content. We are the world's largest distributor of licensed content. Sometimes, our best is not good enough, and as far as child pornography is concerned, we will do whatever it takes to ensure that child pornography reduces from the level it is on peer-to-peer. Let me tell you very briefly what we have done so far. Firstly, when we acquired the Kazaa Media Desktop in January 2002, we ensured there was a family filter, enabled by default, when the program is downloaded. Now, that family filter blocks abusive and offensive terms. The terms are culled from the Internet, because we know from your own data this is where most child pornography originates. There is the option for the parent to put additional terms in and this may be further password-protected. Secondly, we cooperate with law enforcement agencies. I am responsible for dealing with law enforcement agencies, and to date only 4 in the last 18 months have contacted us. We have spoken at a senior level, however, with the FBI because we are not satisfied with the fact that the amounts may be relatively low and diminishing. I understand very well, as people have pointed out, that on peer-to-peer we cannot know what files are transacted. However, what we have done is to work with and to identify third-party applications which they can use very much in the manner you just suggested to track IP addresses. It has been very important to us that while we protect the privacy of users from harassment, et cetera, that we don't block or hinder in any way legitimate law enforcement agencies finding IP addresses. So as a matter of record, we do not have anonymizers, we do not use proxy servers. We think that is not necessary. In the community of sharers around the world we are trying to build, there is nowhere for pedophiles to hide. I am a little bit confused because in the New York Times on Sunday, we saw some data that came from the National Center for Missing and Exploited Children which seems to indicate that the level of pedophile material on file-sharing networks is relatively small, less than 3 percent, and declining. Be that as it may, any material is too much. We are not prepared just to rest. As I said, we want to reduce it to zero. We have in development technical measures that will make it even harder for this material to circulate. When they become available, Mr. Chairman, in the confidence of yourself and your Committee, we will discuss them with you, but obviously we wouldn't discuss them publicly. The other thing which is very important--and again people have alluded to it--is education. We all know that filters are not perfect. We also know that people are not very good about computer security. We know they don't use anti-virus protection, we know they don't use their passwords properly. So a program of education is something we think is very important. Together with the Distributed Computer Industry Association, we are working on a program of education, and if there is anybody here today that wants to work with us, we are very happy to do so. This, as people have suggested already, is an Internet problem. If you enter the most commonly used search word on Google, an eminently respectable search engine, you will get 40 million search results. And I needn't tell you that term is an adult and very explicit term. So this is an industry-wide issue. I was very surprised to see that Hollywood has a view on this. It has been suggested, and indeed it was in the New York Times and the L.A. Times that this is a cynical plot by Hollywood to further their own commercial ends. Be that as it may, we have a zero-tolerance policy--it is that simple--for pedophilic material, and we will not be happy until it is eradicated completely. I now offer our services to any of the members of this panel to work with them, indeed work with you, Mr. Chairman, to do two things; one, to reduce the amount of pedophile material down from the 2 or 3 percent it shows here to zero; and, secondly, a program of education so that parents can exercise their responsibility to use the password-protected filter, and to also enjoin the rest of the Internet to do the same. Mr. Chairman, thank you very much. [The prepared statement of Mr. Morris appears as a submission for the record.] Chairman Hatch. Thank you, Mr. Morris. Mr. Hess, we are delighted to have you with us today. STATEMENT OF STEPHEN HESS, ASSOCIATE ACADEMIC VICE PRESIDENT FOR INFORMATION TECHNOLOGY, OFFICE OF INFORMATION TECHNOLOGY, UNIVERSITY OF UTAH, SALT LAKE CITY, UTAH Mr. Hess. Senator Hatch, Senator Leahy, and other distinguished members of the Committee, I work for the University of Utah. We are located in Salt Lake City, Utah. We have an enrollment of about 28,000 students, and part of the role of the University of Utah is to also provide Internet access to all public schools within the State of Utah. So you might say we are a large ISP serving the State. You have a written copy of my testimony which details most of the information and experience that we have had with peer- to-peer, but I was told in this testimony to give you some of the experiences that we have as a network operator in dealing with peer-to-peer relationships, and more specifically in the area of pornography. I would like to make a few points. Number one, because universities are research and information enterprises, IT has become a very essential part of what we do. It is, in effect, our central nervous system. It holds potential for great efficiency during a time of rising costs and greater accessibility to education and research, free from the constraints of time and place. Number two, peer-to-peer has great potential in sharing information and helping in that education enterprise. We hope in the resolution of copyright and the issues discussed here today that peer-to-peer technology can be preserved, along with emerging technologies, in support of learning and scholarship. Number three, but we understand that there are two sides to this issue and are dismayed by the inappropriate uses of this technology. Unfortunately, it has been used for the sharing of copyrighted material, pornography, and now viruses and worms. The abuse of this technology has also taken a great amount of our computing capacity and IT personnel time, which are all designated for educational purposes. In our attempts to technically block or restrain this activity, some developers of peer-to-peer technologies have initiated clever upgrades to stop us from blocking this inappropriate traffic. Number four, the university is placed in a difficult position, of trying to find a balance between the enabling of a promising new technology while discouraging inappropriate, illegal, or threatening behavior. We welcome any thoughtful discussion on these policies and practices that can minimize our already overburdened IT staff. Number five, we recognize our role to establish and uphold community standards which are reflected in our university policy. We go to great lengths to educate end users on legal, ethical, and appropriate use of computing resources. We promote fair use of online digital content, and thank this Committee and Congress for the wonderful TEACH Act which was passed a few months back. The university considers illegal sharing of copyrighted materials and the downloading of pornography as a violation of our IT acceptable use policy. Number six, to comply with the law and our acceptable use policies, and to protect our networks and computing resources, we have to balance privacy with compliance. We do this in the follow way. First, we monitor traffic flows, but not for content. Traffic flow is a measure of the amount of data transmitted over a network. Content is information contained within the data flow. When an excessive data flow is detected or is seen over the network, it can bring down the network. This, in turn, brings down the hundreds of thousands of applications that run on our networks vital to the day-to-day, hour-by-hour operation of the Internet. When excessive traffic is detected, we contact the end user to see if the use of the network is legitimate. Some of these excessive flows come from peer-to-peer sharing of copyrighted materials and the downloading of pornography. If these people are downloading pornography or downloading copyrighted material, in violation of law, they are cut off our networks until they come in compliance with the policy. Second, we may also receive notification from copyright- holders about violations of end users. We may be notified by a department Chair, dean, or vice president about violations as well. In these cases, if the violation of copyright is involved or the downloading of pornography, people, by policy, are cut off from the network and must go through an education process to be reinstated. We have yet to have repeat offenders. Number seven, pornography is not acceptable use of university IT networks and resources unless it is used for academic or research purposes. If faculty, staff, or students are found to possess illegal pornography, they are deemed to be in violation of Federal and State laws and are reported to law enforcement agencies. While technologies like peer-to-peer can be disruptive, they continue to provide the opportunity to advance civilized life in a democratic and open way. We support a flexible and balanced approach to keeping technology open and better able to serve the public, but deal with the people who abuse these systems. Thank you. [The prepared statement of Mr. Hess appears as a submission for the record.] Chairman Hatch. I was very interested in what you are doing up there. It is amazing. Mr. Jacobson. STATEMENT OF DOUGLAS W. JACOBSON, PRESIDENT AND CHIEF TECHNOLOGY OFFICER, PALISADE SYSTEMS, INCORPORATED, AMES, IOWA Mr. Jacobson. Mr. Chairman and members of the Committee, I would like to thank you for the opportunity to appear here today and discuss the issues surrounding peer-to-peer networks. A more detailed discussion of these issues can be found in my written testimony. By way of introduction, I am Associate Professor of Electrical and Computer Engineering at Iowa State University and Director of Iowa State's Information Assurance Center. At the same time, I also serve as President and Chief Technology Officer of Palisade Systems, a company which has developed products to help deal with peer-to-peer file-sharing. You don't have to look for pornography on peer-to-peer networks. As many of our panelists have talked about, you just type in a search string and it finds you. You can even type in a name of a file that you know doesn't exist on the network and you will come up with peer-to-peer pornography that will match that file. I did this in a class I taught, and it turns out there are actual programs on the Internet, on these peer-to- peer networks that will generate matches to your files and return links to pornography. So you don't even have to have a file out there. Palisade Systems conducted a study of searches on the Gnutella network, which is a peer-distributed network, and our studies are in line with other studies showing 42 percent of the requests were for pornography; 6 percent of those requests were for child pornography. Many other studies have been published, all coming to the same conclusion. An argument can be made that legitimate peer-to-peer applications would not need to hide from detection or evade monitoring, as was pointed out by Mr. Morris. I want to talk briefly about the ways that these protocols have evolved over time to circumvent the methods that administrators have used to block them. First there was port- blocking. The early peer-to-peer protocols ran on certain ports and administrators blocked those ports. The peer-to-peer protocols quickly evolved to do port-hopping, so the port numbers would change in order to avoid detection. When administrators locked their networks down even further so that they only allowed a few critical services, these peer- to-peer applications began using a technique called tunneling, where they pretended to be legitimate applications. They would start to look like Web traffic or other types of legitimate traffic. So these protocol, are evolving, trying to avoid being detected. I will talk briefly about some additional filtering techniques. Another filtering technique beyond port-blocking is something called signature-based, where you actually look at the way these protocols communicate. Palisade Systems, for example, has a product that works this way, and so it is sort of like virus detection. There is content-based filtering, where you try to look at the content of the data and actually determine whether the data is copyrighted material or potentially a material that is of an illegal nature. This turns out to be very difficult to do, especially if the material can't be cataloged, like pictures of pornography. There is no catalog of all the images. Again, the peer-to-peer networks are now moving to encryption in order to hide all the data that they transfer. A final method is something called white-listing, where you allow only those things that you know are good, only those protocols you know are good, and block all other types of traffic. As I have said, these protocols are evolving and the newest steps in the evolution are that of encryption and anonymous access. The best example of this evolution is the newest application called Earthstation 5. This protocol uses both encryption, anonymous access, and tunneling. The website for Earthstation 5 makes it clear they are working at efforts to stop filtering of the protocol. A couple of observations can be made from the review of these filtering technologies. While each technology has certain limitations, using multiple technologies in a layered approach seems like the best defense in a corporate environment. However, this method often requires knowledgeable staff and constant monitoring of the networks. Second, most technologies are focused on a corporate market and are not designed for home users. If a home user allows these applications to be installed, little can be done to prevent downloading of pornography or other material. This leaves the home user with no choice but to either allow peer- to-peer activity and all its associated risks or try to set up a way to not allow any of it. It should be possible for Internet service providers to offer a service that blocks all peer-to-peer traffic similar to the way they offer a service for web filtering. The bottom line is the home user needs to be educated about the potential dangers of peer-to-peer networking. In summary, I have outlined how peer-to-peer networking has evolved to avoid detection and filtering. I see no signs of this evolution slowing down. In fact, with the advent of the newest protocols like Earthstation 5, we will be facing increasing challenges over the years ahead. Also, given the inherent distributed nature of the peer-to- peer protocols and the difficulty in identifying these networks, I predict that peer-to-peer networks will become a method of choice to distribute illegal materials across the Internet. Companies like Palisade Systems, in conjunction with research universities like Iowa State University, will continue to develop new technologies to combat the evolution of these peer-to-peer networks. I would like to thank you for the opportunity to testify and I am pleased to answer any questions. [The prepared statement of Mr. Jacobson appears as a submission for the record.] Chairman Hatch. Well, thank you so much. Let me just begin with Mr. Spota and Mr. Malcolm. What can law enforcement do or what can we do here in the Congress to help you to eradicate pornography from these networks? What would be your suggestion? Mr. Spota. If I may, Senator, the way I see it, I can do nothing other than to prosecute those within my jurisdiction, which would be on a country level within the State of New York, Suffolk County, State of New York. I have a staff of 161 prosecutors. I probably could ask every single one of them to devote each and every hour and we would never be able to eradicate this. We would be doing nothing other than trying to put some dent in the County of Suffolk itself, where either possessing or promoting this--people can be brought to the bar of justice by my office. It just seems to me that it has to be done on a Federal level. As I indicated before, where you have distributors and these networks which are reaping enormous profits, something should be done. They must bear some responsibility, and it seems to me that anything that has to be done should be done by Congress to give our Federal law enforcement counterparts all the tools necessary to have the jurisdiction to reach these people. That is the way it seems to me it can be done. The specifics I can't give you, but perhaps Mr. Malcolm can. But it has to be done on a Federal level Chairman Hatch. Mr. Malcolm, what would you suggest we do? Mr. Malcolm. Well, as Senator Leahy pointed out in his opening statement, this is clearly a bipartisan issue and the number of investigations and prosecutions of child pornography and child exploitation cases has gone up each year for the past seven or 8 years, probably beyond that. In part, I am afraid it just shows the proliferation of this material as the Internet has literally exploded upon the scene. Senator Congress has already done quite a bit to help us. The penalties for child molestation and child pornography offenses have dramatically increased with the PROTECT Act. We will have 25 new prosecutors devoted to this effort. That having been said, this is a worldwide problem and a target-rich environment. A number of the perpetrators of these offenses are located overseas. Some countries cooperate with us more than others. I am not sure we will ever be able to really ever completely eradicate this problem. Chairman Hatch. Would you suggest that we put out of business the networks that allow this to occur? Mr. Malcolm. I am sorry Chairman Hatch. Do you suggest we put out of business the networks that allow this to occur? Mr. Malcolm. Well, of course, in order to do a criminal prosecution, you have to prove knowing involvement. As Mr. Morris, I believe, said, there are a lot of networks that may facilitate this activity by having a peer-to-peer system or allowing commercial websites. However, they don't always control the content that is out there and they don't necessarily patrol their systems. Certainly, one of the things that Congress can consider, which this Committee is considering, is regulating the means by which this material is propagated. Chairman Hatch. Professor Jacobson, let me turn to you. I would like to discuss for a moment the circumvention practices in which the P2P networks engage which you talk about in your testimony. It seems to me that when the computer owners choose to filter or block certain programs, that decision ought to be respected. The practices you identify, such as port-hopping, seem to significantly complicate the efforts of computer owners and system administrators to control what comes into their systems. If we were to require that these networks and perhaps others on the Internet publicly register their ports and operate only through those registered ports, would that better enable computer owners to secure their computers against these unwanted materials? Mr. Jacobson. Yes. You would be able to filter out those protocols that you didn't want that matched those assigned port numbers. So that would allow an administrator as a first line of defense to better filter those things out. Chairman Hatch. Mr. Morris, you insist in your testimony that the availability of child pornography on P2P networks pales in comparison to the quantity available on commercial websites on the Internet. Even if true, do you not see a material difference between pornographic content, including child pornography, that is thrust upon juvenile P2P users whether they want it or not and websites to which access is granted only upon presentation of a credit card number usually available only to adult members of the household? Mr. Morris. You make a differentiation, as indeed I did, between websites and peer-to-peer. I guess it is useful to go through what happens on peer-to-peer. When somebody does a search--and let's assume that they choose to take off the filter, willingly take the filter off--then they will search and they will get a list of search terms. Those search also contain matter tags that describe what is in the file. So for somebody to download, they are going to have to click the file, watch it download, and then open it. So there are various processes. So the idea of files suddenly appearing doesn't really happen. If, however, you look at the Internet, then you take those 40 million results. A lot of those sites you go to will be very sticky; they will stay on your computer. You can't close them. They will often download dialer applications that will send you on premium lines to Bermuda. Senator Leahy. Send you a what? Mr. Morris. What they will do is they will download something called a dialer which will dial out of your computer--you guys know very much about this, yes--dial out of your computer to pornographic sites around the world, because their business is money. They sell pornographic images. The other thing they will do is very often pop up. They use pop-ups, so they have teasers which are very explicit which will encourage the person to click on. The idea is then to lead them into either gratuitously pornographic sites, as the pedophiles do, or into then sites where they register a credit card. So the chance of somebody actually being exposed suddenly to a pornographic image is infinitely greater. Now, none of that says that because it is relatively small, it can be tolerated. But there is a significant difference between website and peer-to-peer. Chairman Hatch. Mr. Hess, I realize the concerns that P2P networks raise in the university environment are not limited to, or even primarily stem from, the availability of pornography. We appreciate you coming here and enlightening us on the multiple challenges you face with respect to these networks. You stated in your testimony that at times as much as 30 percent of the University of Utah's bandwidth is taken up with peer-to-peer file-sharing. Can you give us an estimate of what that costs the university? Mr. Hess. If high levels of peer-to-peer were sustained throughout the year--it ebbs and flows depending on how many students are on campus--it could approach $1 million Chairman Hatch. In your testimony, you mention the recording industry's recent pursuit of computer users making large numbers of copyrighted songs available on P2P systems. Do you feel that these types of actions are helpful or even necessary to get students to take copyright laws seriously? Mr. Hess. Yes, at least that has been our experience on campus. Now the word is out that studets are being sued, it does make a difference, the amount of traffic has declined. Chairman Hatch. In the last hearing, I suggested that with new technology they actually could blow up the computer after giving appropriate warnings. [Laughter.] Senator Leahy. There was not uniform support on the Committee for that idea, I want you to know. [Laughter.] Senator Leahy. We have joined on many of these things, but that is one where we kind of broke ranks. Chairman Hatch. Only because of the lack of innovation on the part of those who didn't support it. [Laughter.] Chairman Hatch. But I think that more or less has awakened everybody to the fact that these are important issues, and it was one of the reasons why I did that. And I think it was very, very important to get out there that it is illegal what they are doing, that it is wrong, that if we don't have copyright, we are not going to have the creativity that this country is so noted for throughout the world. This has been very, very interesting. I have a lot of other questions, but I am going to turn to the Democratic leader on the Committee and see what he wants to get into. Senator Leahy. Thank you, Mr. Chairman. I have found this a fascinating hearing. Unfortunately, because, as always happens on the Hill, you are supposed to be in three places at once, after these questions I will have to leave. I am going to have some that I will submit for the record. I know, Mr. Spota, with a dozen of these fairly complex prosecutions you have brought recently, I am going to want to know more about that. That may well be a model for the rest of us. Of course, Mr. Callaway and I talk all the time on a number of these issues. Mr. Morris, as you may know, the Internet service providers are required by Federal law to report all cases of child pornography to the National Center for Missing and Exploited Children. In fact, the statute states that the requirement is on anyone, quote, ``engaged in providing electronic communications service or a remote computing service to the public through a facility or means of interstate or foreign commerce.'' Now, under that definition, aren't you and other peer-to- peer networks covered by that statute? Mr. Morris. I am not a lawyer and I wouldn't presume-- Senator Leahy. What do your lawyers tell you? Mr. Morris. That question as far as I know has never been asked. My interpretation as a layman would be very simple that in a technical sense it is not a network. What it is is a series of individual applications. Basically, as somebody said, it is like a net, a fisherman's net. So individuals sit there, there, and there, and they choose to share amongst each other. So I am very happy to ask our attorneys, but prime facie, I would suggest that, no, we are not covered. Senator Leahy. Well, let's talk about Kazaa. Would that mean that under this law they couldn't report pornography because they don't look at content? Mr. Morris. Sorry. When you say ``they,'' you mean we? Senator Leahy. Yes. Does that mean that you can't-- Mr. Morris. We technically--sorry to interrupt, Senator. Senator Leahy. Does that mean that you can't report pornography because you don't look at the content? Mr. Morris. Precisely. There is no technical way at all. It is like asking Microsoft to look at the content of people's e- mails. Senator Leahy. You know, I would find that more believable, except that you find ways to find so-called spoofed files. Yes, you do. Mr. Morris. Sorry. Senator Leahy. I will explain. If some of the companies and some of the artists who feel that their works are being stolen on your system and if they decide to put in a so-called spoofed file--that is, they have the name of an artist and the name of the record, but then they make sure that there is just white noise or something like that on it. Somebody would have to go through the whole downloading and do it. Somehow, you are able to check the content of that and those are taken off your network. You have ways of using filters to make it easy for children to circumvent those filters. I mean, let's get real. On the things you don't want, the things that are going to cost you money--that is, having hundreds of white noise albums put in there--you can get rid of those. Why couldn't you get rid of the pornography, too? Mr. Morris. I do not know any way that we can get rid of the spoofed files, or indeed the promotional files. Senator Leahy. But you do. Mr. Morris. Sorry. Can you explain how, because I don't know? Senator Leahy. I have no idea. You are the ones who are running it. But, boy, they don't last on there very long. I think the next panel is going to point out that they have had artists that they represent try to put them on and then they don't last very long. Mr. Morris. I understand what you are saying; the spoofed files, or indeed the promotional files that the record industry distributes very widely on KMD, and by their own admission. We have something called an integrity rating. That is for users to self-clean. Now, users will indicate when a file is badly recorded. I mean, you must have come across a lot of files which are just poorly recorded. Similarly, users will tend to indicate that a certain file has a low integrity. Now, we would certainly encourage users of KMD to use that mechanism to indicate when a file is pornographic. There is no specific category for pornographic; it is just low integrity. But if every user put pornographic files as low integrity--i.e. self-cleaning--then that would clean the network up very quickly. So what you are talking about is the user community itself--that is not us at all--cleaning the network of files that they don't see as being of high integrity. I now understand what you are talking about. We have absolutely no control over that. Technically, we cannot. Senator Leahy. Well, you install on your users' computers software that tracks their activities online and puts advertisements on their hard drives based on what it shows. Are you also installing information on those computers about whether they are going to pornographic sites? Mr. Morris. Sir, when you talk about installing applications-- Senator Leahy. When your programs run, they also pick up information about the users so that you can run pop-up ads and do things like that. You don't do that? Mr. Morris. No. Let me clarify for you. Senator Leahy. You have no way of tracking their activities online? Mr. Morris. Absolutely none. Senator Leahy. None whatsoever? Mr. Morris. There are some urban myths around that there is spyware or-- Senator Leahy. How do you make money? Mr. Morris. We make money through advertising. Let me clarify. Senator Leahy. Mr. Morris, I will let you finish. My time is running out here. Mr. Morris. Sure. Senator Leahy. You make money by advertising, but you don't send the same advertising to everybody. Mr. Morris. Precisely. Senator Leahy. If you have got somebody who consistently wants country and western, you are not going to be sending advertising for Beethoven's Third there. I mean, you and your advertisers just don't go out to everybody; they go selectively by how often the person is on. No? Mr. Morris. No. Senator Leahy. So if somebody uses your system just once or if they use it 500 times, they get exactly the same ads? Mr. Morris. Yes. Senator Leahy. They don't change? Mr. Morris. Let me clarify. The side door application, which is similar to double click, which is the same sort of application that most of the major websites in the world use, serves the same ad. So a maximum of five pop-ups will be delivered in a 24-hour period. Those little banners you see-- those are delivered to everybody. Now, you may be talking about contextual advertising. Currently, we have no contextual advertising bundled with KMD; we have in the past. They have high levels of privacy and what they do--they are a separate applications and those applications are related to websites people visit. They are not applications we control and they certainly can't be used to track visits to illegal sites. I think that must be what you are talking about. Senator Leahy. Mr. Chairman, I will have some follow-up questions. I realize I have gone over my time, and I appreciate that I know there are other Senators who want to ask questions. Chairman Hatch. Senator Schumer. Senator Schumer. Thank you, Mr. Chairman. I want to thank you for holding this hearing, and I thank you and Senator Leahy for spotlighting this issue. It is an issue important to parents like me, whose children's knowledge of computers and the Internet far outweigh my own. I am a big fan of the Internet and the amazing way it has improved our lives, from e- mail, to the World Wide Web, to the way it makes holiday shopping a breeze. We just drove my daughter to college in Boston and we got one of the fanciest hotels for $109 because we used the Web. I am not going to say what company right here, not at this table, Mr. Chairman. But lately I have been concerned that this hallmark of the information age is getting bogged down. When you have such a new, major invention--I am sure this happened every time--there are all sorts of problems that emerge--spam, criminal activity in terms of fraud schemes. And now comes news that the dark side of the Internet just got a little darker because of your excellent GAO report, Ms. Koontz, which talks about how much child pornography has infiltrated the Web. I am going to ask that my whole statement be read into the record. Chairman Hatch. Without objection. [The prepared statement of Senator Schumer appears as a submission for the record.] Senator Schumer. But I do want to make one point, Mr. Chairman, and that is earlier today I was with D.A. Spota--and I want to commend you. Tom Spota is the D.A. of Suffolk County, one of the largest and most important counties in New York, and has done a great job as D.A. in general and on this issue, in particular. Earlier today, he and I and Terry Schroeder, who is the President of ISAF, an organization that is dedicated to protecting children online, called on the Justice Department-- or I called on the Justice Department to create a special task force to crack down on the traffic of child pornography by file-sharers. The task force would bring together the resources and expertise of the FBI and other Federal law enforcement agencies to find the best ways to track down and stop these criminals from peddling child pornography, and it would set up strong channels for information-sharing between the Federal task force and local officials like D.A. Spota to ensure that all levels of law enforcement are up to speed in this highly technical area. In addition, Mr. Chairman, to strong law enforcement, I believe those in the technology industry need to step up to the plate. Those who profit from file-sharing technology have to do everything in their power to prevent the networks from being used for criminal activity, and that is where my questions will lead. But first I wanted to ask D.A. Spota--as you know, I am asking for the creation of a national task force to focus on the challenges associated with the use of peer-to-peer networks to proliferate child pornography. The task force would bring together the several Federal agencies that deal with this problem and deal with the experiences of local law enforcement, like yourself, to ensure that all law enforcement is up to speed on the danger of peer-to-peer networks. Do you think the task force is a good idea? Would it be helpful to local law enforcement, and are there lessons offices like yours could share that would be useful to Federal law enforcement? Mr. Spota. Well, thank you, Senator. Certainly, it is a terrific idea. There is no question about that. I mentioned before in response to a question, I believe, by Senator Leahy or Senator Hatch that it seems to me that, as you say, a Federal task force is what is in order. I am limited in our State jurisdiction. The Department of Justice and the U.S. Attorneys' offices obviously--their jurisdiction will extend throughout the United States, and I am sure even further, and I think that that is what is necessary. Mr. Morris indicated to me before we were speaking--I may be wrong, but I think you might be located in Australia. Mr. Morris. Mr. Chairman, if I may, we would be very happy to assist and advise that task force in any way we can. We are based in Australia. I am based in London. I have quite used to flying over. So we would be very happy to give you technical-- Senator Schumer. We don't want any of these meetings to occur in Hawaii. Mr. Morris. There are some very nice islands in the South Pacific. But we would be happy, my chief technical officer or myself, to provide on a one-way basis, a one-way street, any information or help we could. Senator Schumer. Great, thank you. Well, thank you, D.A. Spota, and I appreciate your endorsement of this idea. My next question is for Mr. Morris. As I mentioned in my statement, I think it is important that peer-to-peer networks do everything within their power to stop criminal activity involved in the sharing of child pornography through your software. Your own terms of service agreement, which outlines the ways in which users are allowed to use the network and the license, suggests you will take measures to ensure that illegal or offensive content is not shared via your software, which is good. Your license agreement explicitly states in part that users, quote, ``agree not to use the software to transmit or communicate any data that is unlawful, harmful, obscene, or otherwise objectionable,'' unquote. Users who share child pornography files, including those charged in Suffolk County, violate this agreement and I want to know what you and your company are doing about it. What actions has Kazaa taken against these individuals in Suffolk County? Have you revoked their license agreement or sent them notices that they have violated the agreement? Mr. Morris. Firstly, we do not know who the offenders are, but I am very happy to speak with you later. A general point about the end user license agreement to which you refer. Yes, indeed, it does very strongly state that we can revoke the license. These, if you like, honor licenses are common throughout the Internet for downloading software. They are very much the questions you get asked in an airport, which say, you know, are you spy, do you have a bomb? The purpose of asking it is it does allow one, after the event, to do that. Senator Schumer. This case got quite a bit of notoriety not just in New York, but around the country. Mr. Morris. This is the first case that we have become aware of. If you care to tell me which users were actually using Kazaa as opposed to the hacks and the various other applications which you guys know sit on the fast-track network--perhaps if your colleagues could contact us-- Mr. Spota. They were all using Kazaa. Mr. Morris. They were using Kazaa or Kazaa-lite? Mr. Spota. I am sorry? Mr. Morris. Were they using Kazaa-lite? Mr. Spota. Oh, I don't know. Mr. Morris. Yes. There are various clones and scamsters. Mr. Spota. No, no. I hate to interrupt. For sure, they were using Kazaa, your company. Mr. Morris. Okay. We would be very happy--in fact, as I said earlier, we applaud what has happened in Suffolk County because that sends a strong message to people that they are not anonymous and that they will be found out. So, yes, we would be happy, if we had the address details, to serve such a notice. Senator Schumer. Why hadn't you done it before this fortuitous meeting between you and Mr. Spota occurred? Mr. Morris. Because technically it hadn't crossed my mind. I wasn't aware-- Senator Schumer. Would you in the future, on your own, if there are other cases like this or you hear that cases are being brought? Mr. Morris. Surely. As I said earlier, I have only had contacts from four law enforcement agencies. As I said, in the early days of peer-to-peer, it was used on a pilot basis by pedophiles and they have tended not to use it in a systematic way since then because it is open and anonymous. I would be very happy to work with the task force, and if any law enforcement agency does have details of specific users of KMD who have been prosecuted, yes, we would certainly send them such a notice. Senator Schumer. A second question. Chairman Hatch. Senator, your time is up. Senator Schumer. Okay. I am going to try to ask some more questions on the next round. Chairman Hatch. Well, we are going to submit written questions because I have got another panel and I have got to get through here. Senator Schumer. Could I just ask one more, Mr. Chairman? Chairman Hatch. Sure, go right ahead. Senator Schumer. Thank you. The next question is what kind of disclosure do you make to parents? In other words, would you consider letting them know that somehow or other, if their child uses Kazaa, they might be deluged, or at least be shown pornographic materials? Mr. Morris. We are currently working with the industry association which has just been formed to find ways of doing that very thing. It is a two-stage process. Firstly, we support all measures to have parents actually understand what is on their kids' computers. That is the first stage. Secondly, having done that, then make parents aware of the pitfalls of using the Internet, in general, and file-sharing programs in particular and where that might lead. So, yes, we are very happy to get behind those sorts of programs. Chairman Hatch. I would like to see that happen because what we are dealing with here is pretty pathetic stuff, and your network basically is the network that is being used, Kazaa. Senator Durbin. Senator Schumer. Well, just-- Chairman Hatch. I hate to cut anybody off, but I do have to get through this hearing. Senator Durbin. I know you are trying, Mr. Chairman. Thank you. Chairman Hatch. Yes, and we will keep the record open for questions because these are good questions my colleagues are asking, and I hope you will take the time to answer them. Senator Schumer. I won't ask a question. I will just make a suggestion, and that is that Kazaa also try to give some funding to ISAFE, which does the job pretty well. I would ask in writing that you respond to whether you would be willing to do that and to what extent. No answer is necessary. Mr. Morris. We would be very happy to respond and I am virtually certain it will be in the positive. Chairman Hatch. Senator Durbin. Senator Durbin. I would like to follow up on one question. Mr. Morris, there was something you stated a little earlier that led me to believe this was the first time you had heard about this problem. Mr. Morris. No, not about the--we have known that there is pornography and some instances of child pornography. When you say ``this problem,'' you mean the general issue of-- Senator Durbin. Your conversation with Mr. Spota, for example. Mr. Spota. I think, sir, perhaps I misspoke. He was talking about the names of the people. That was our conversation. Senator Durbin. Well, Mr. Morris, if this has been a recurring problem or a chronic problem with your company, my question is this: Do the advertisers on your network ever ask you whether or not you have taken steps so that the network does not become a venue for this kind of child pornography? Mr. Morris. I think the evidence from these data here show that it is not a chronic problem. Any single instance is a problem. As to whether advertisers have raised an issue, I don't believe they have, but I can check that out. Senator Durbin. That has frankly been a fairly effective way of changing policy in our country when those who are inadvertently or indirectly supporting this kind of activity come to know that their customers are not going to use their products. I would think that would be a concern to you from a revenue viewpoint, would it not? Mr. Morris. It is a concern universally across the Internet. Senator Durbin. Mr. Spota, thank you for your leadership on this, but could you be more specific in terms of what you have found relative to his company and how it has provided access to this child pornography? Mr. Spota. Well, what we found is basically contained in my testimony, but essentially children, in my view, are curious by nature. We all are, but especially children. I believe the people who are making this pornography and setting up these files are purposefully using terms that will be attractive to children--Brittany Spears, Pokemon, and anything with the word ``young'' in it. I do disagree with Mr. Morris where he says, well, it is just by virtue of the fact that the file will obviously contain some pornographic literature. They will incorporate some term that will attract the attention of that child. So if a kid wants to look for something with ``Brittany Spears,'' there will be a file name that will contain the name ``Brittany,'' and oftentimes other names that have nothing to do with it. They will punch that on because of their natural curiosity. That is what is occurring. Senator Durbin. My other question to you is in terms of your prosecution, is it under State law that you are prosecuting? Mr. Spota. Yes, it is, Senator. Senator Durbin. Do you find any limitations because you are dealing with State law in how far you can go by way of discovery or prosecution? Mr. Spota. Absolutely, and that is why I am bound to prosecute only those who commit these crimes, possession or promoting child pornography, within the County of Suffolk. That is why I think it is so important that Congress act to give the Justice Department, the United States Attorney's Office, and the FBI the opportunity to prosecute these types of cases. Senator Durbin. Ms. Koontz, isn't that the GAO conclusion that there isn't clear delineation of Federal prosecuting standards? I think what I read in your GAO report is that we need more resources dedicated to this. Do you think the law is clear enough in terms of the prosecution? Ms. Koontz. Actually, our study focused on identifying the level of resources that are devoted to peer-to-peer networks among the various law enforcement agencies. We were unable to determine how many resources were devoted because law enforcement agencies don't keep statistics in that kind of way. Our work has been much more focused on defining the parameters of the problem and I couldn't speak to the adequacy of the prosecuting standards. Senator Durbin. Well, maybe Mr. Malcolm can, because one of the concerns that I think we have is that since 2 years ago, there has been more and more focus of resources on terrorism. The FBI and other agencies have been told, frankly, drop some of your traditional activities or reduce your activity in them dramatically and move toward terrorism. That is our number one priority. So what chance do we have here to have any kind of dedication of resources or aggressive effort involving the FBI when it comes to this problem of child pornography? Mr. Malcolm. Let me just say that in spite of this diversion of resources, the number of cases that we filed against child pornographers and child exploiters was up 22 percent last year. We don't work just with the FBI. We, of course, also work with ICE, we work with Postal, we work with various State and Federal agencies. We, in fact, work with the Internet Crimes Against Children Task Forces. Let me stress that peer-to-peer is a serious problem. Don't get me wrong. Kazaa is only one peer-to-peer network, and in addition to that, there is a lot of this material out there on the Web. There is a lot of this material in chat rooms. There is a lot of this material in news groups. There are all kinds of emerging technologies that have presented ample opportunities for pedophiles to peddle their wares and to trade material and, through chat rooms, to contact kids. Unfortunately, as I said before, this is a target-rich environment. Congress has already done a lot in terms of increasing the penalties through the PROTECT Act. You have given us additional resources. Unfortunately, this is such a worldwide problem that you are not never going to be able to eradicate it all. We are doing the best we can with what we have. Senator Durbin. Mr. Chairman, the last thing I will say on it is this. A few weeks ago, we had a family reunion and one of my nieces said that her son, a teenager in high school, didn't want to come to the reunion because he just loves to stay on the Internet, she said. He is on there all the time. She went on to say, you know, I don't know a thing about it; I can't even tell you what he is doing there, but he just really loves it. And I am thinking to myself, gosh, I hope that is going well. But that mother is in the same position many of us are who are not as conversant with the Internet as our children and grandchildren. So to say we are going to give the tools to parents many times is suggesting that they are going to develop a level of knowledge and sophistication about the Internet which is unrealistic. We have to develop other mechanisms to deal with this, and threats to those who would abuse it. Thanks for this hearing, Mr. Chairman. Chairman Hatch. Well, I want to compliment my colleagues for their questions, and also these comments. They are right on. You folks are in the forefront of this battle. Mr. Morris, I know that you seem to be the person on target here, but there is good reason for it. I think unless you can help us to help you to get rid of this material, you are going to be under constant attack and ultimately we are going to have to do some things that would be very detrimental to your business. So I think you have really got to take this seriously. Mr. Morris. Chairman Hatch, I think we do. I would say that I am willing to come over any time you want me to to work with you, your staffers, and anybody else here to help eradicate this issue. Chairman Hatch. Well, we have had some good suggestions here today between you and Mr. Spota, and I think that could be true of other people as well. We appreciate your willingness to be able to do this, but it is serious stuff and we have got to do something. The circumvention of security measures through various means such as port-hopping and the difficulties it raises have been brought to our attention through a number of different channels. I believe it is worth exploring what can be done to bring all these matters under control. I know that Senator Leahy is going to work with me on this, as will other members of this Committee, and we will see what we can do to come up with some way of resolving some of these matters, or at least giving you the tools to be able to resolve them. With that, I want to thank each of you for being here and we appreciate the efforts you have made and the information you have given us. It has been a very important hearing up to this point. So thank you very much. Our second panel will address the ISP subpoena provisions of the Digital Millennium Copyright Act. This is a critical part of the compromise that this Committee helped negotiate between the content and the technology industries. This compromise was intended to permit both the development of Internet services and the enforcement of copyrights on the Internet. If we could have order, I would appreciate it. Let's have order. This compromise, which is now codified in Section 512 of the Copyright Act, creates so-called safe harbor provisions that protect Internet service providers from secondary liability for copyright infringement. These safe harbors protect ISPs regardless of whether their systems act as conduits, locators, or hosts for infringing materials posted by third parties. In exchange for these safe harbors, Section 512 requires ISPs to provide specific assistance to content creators alleging that someone is using ISP services or systems to host, locate, or transmit infringing content. For example, Section 512 can require an ISP to remove allegedly infringing materials hosted by the ISP, or to identify an allegedly infringing customer in response to a subpoena under Section 512(h) of the Act. Recently, the subpoena provisions of Section 512(h) came under scrutiny when they were invoked by content creators trying to identify individuals allegedly trading infringing materials over peer-to-peer file-sharing networks. Our second panel consists of three panelists who will discuss the legal and policy implications of the subpoena provisions that underlie both the Section 512 compromise and our broader system for reconciling copyright and the Internet. Mr. Cary Sherman is the President of the Recording Industry Association of America. His organization has served Section 512(h) subpoenas to obtain identifying information about individuals alleged to have been trading infringing music files over peer-to-peer file-sharing networks. Mr. William Barr is the former Attorney General of the United States and is the General Counsel of Verizon. His company provides ISP services and has received Section 512(h) subpoena. Our last panelist, Ms. Marybeth Peters, if the Register of Copyrights. She brings to this narrow but important dispute about Section 512(h) subpoenas her unquestioned expertise with the broader issues of law and policy that underlie both the DMCA and the Copyright Act. She has also been gracious enough to help us streamline this large hearing by agreeing to appear on the same panel as our private-party witnesses and agreeing to go last in order to provide some perspective on the views of the two preceding folks. I just want to express my gratitude for having all three of you here. All three of you are leaders in the respective areas in this field, and we are just very grateful to have you here. I think we will start with you, Mr. Sherman, and then we will go to General Barr and then we will come to Marybeth. STATEMENT OF CARY SHERMAN, PRESIDENT AND GENERAL COUNSEL, RECORDING INDUSTRY ASSOCIATION OF AMERICA, WASHINGTON, D.C. Mr. Sherman. Thank you, Chairman Hatch, for inviting me to testify today and for your ongoing commitment to protecting intellectual property. We are all very grateful. My name is Cary Sherman. I am the President of the Recording Industry Association of America, the trade association representing the U.S. recording industry. Our members create, manufacture, and/or distribute 90 percent of all legitimate sound recordings in the United States. I would like to take just a minute up front to give the Committee some information regarding some announcements we made yesterday. Following a multi-year campaign to educate the public about the illegality of unauthorized downloading and the launch of more than a dozen high-quality, low-cost, legitimate online music services, the RIAA filed lawsuits yesterday against more than 250 individuals who were sharing, on average, over 1,000 copyrighted music files on public P2P networks. We simultaneously announced a program to grant what amounts to amnesty for individuals who voluntarily identify themselves and pledge to stop illegally sharing music on the Internet. Should you have any questions about it, I would be pleased to respond to them later. We would have preferred to avoid litigation, but we could no longer simply stand by and watch while our products are stolen in mass quantities and the livelihood of thousands of artists, musicians, songwriters, recording companies, and retailers are destroyed. We hope that this ongoing effort will educate the public about the consequences of online piracy and help foster an environment in which a legitimate online music marketplace can thrive. Let me now turn my attention to the topic of today's hearing. Let me just begin with some startling statistics. Over the past 3 years, shipments of recorded music in the United States have fallen by an astounding 31 percent. Hit records have been impacted most dramatically. In 2000, the top 10 selling albums in the U.S. sold a total of 60 million units. In 2001, that number dropped to 40 million, and last year it totaled just 34 million. The root cause for this drastic decline in record sales is the astronomical rate of music piracy on the Internet. Although there is no easy solution to the piracy problem, one thing is clear. Verizon's DSL subscribership is growing due to the explosion in the use of P2P, and it is very troubling to our industry that Verizon actually encourages its new subscribers to visit unauthorized P2P services instead of legitimate licensed sites as their preferred source for music online. If you sign up for Verizon DSL, you get a brochure, ``Your Guide to Broadband Living and Content,'' that tells users, and I quote, ``Subscription sites do offer up MP3s to download. However, they typically don't offer music that is selling exceedingly well in stores. By contrast, the free sites are likely to have pretty much everything, but you may get pelted with some unwanted ads.'' And people wonder why the copyright community is skeptical of Verizon's claim that the real issue is privacy and not piracy by their subscribers. After all, nowhere in the brochure does Verizon warn its customers about the serious privacy threats of using P2P. Think about it. Kazaa has been downloaded over 250 million times, and many of those who use it are unwittingly sharing sensitive personal information--e-mails, tax returns, financial and medical records--with millions of others on the Internet. You would think that a company as concerned about privacy as Verizon claims to be would warn its subscribers that they are committing privacy suicide when they put Kazaa on their computers. So what does all of this have to do with what we are talking about today? First, it helps explain why RIAA's members, with the support of a broad array of other organizations in the music industry representing artists, songwriters, music publishers, and others, took the action we announced yesterday, and why Judge Bates conclusively decided on two separate occasions that the DMCA information subpoena process does apply in the P2P context and that the real privacy threat is millions of users essentially opening their computers to the world. Second, and perhaps most important for this hearing, they illustrate that Congress, under the leadership of this Committee, saw the future in 1998 when it passed the DMCA. The rampant piracy of music on the Internet is a true-to-life example of exactly the kind of problem Congress envisioned copyright owners would face in the digital world. Although P2P technology did not exist in 1998, Congress understood that the Internet and advances in technology would lead to an explosion in online theft of intellectual property. So in exchange for exempting ISPs from any liability for the infringing activities occurring on or over their networks and connections, subject, of course, to certain prerequisites, Congress created a framework by which copyright owners, with the assistance of ISPs, could expeditiously identify individuals engaging in infringing activities online. That compromise--expeditious access for copyright owners to identifying information of infringers in exchange for broad liability limitations of ISPs--is as fair today as it was in 1998. Five years after the passage of the DMCA, we hear nothing from Verizon about changing its liability limitation, but a lot about its concerns over privacy. I just want to mention one thing. No one has a privacy right to engage in copyright infringement on the Internet, and illegally sharing or downloading copyrighted music online is not a form of free speech or civil disobedience protected by the First Amendment. As I understand Verizon's privacy argument, disclosing its subscribers' identifying information pursuant to a valid DMCA information subpoena threatens to violate its subscribers' privacy because the information subpoena process, in their estimation, is susceptible to abuse and does not provide the same protections afforded by a more traditional John Doe lawsuit. But Congress considered and decided this question back in 1998. Ironically, the very principle ISPs profess to defend, the privacy of their subscribers, is at greater risk in a John Doe action than through the information subpoena provisions of the DMCA. There are statutory limits on the type of information a copyright owner can obtain via an information subpoena and the purpose for which that information can be used. A copyright owner can only receive information that is necessary to identify and contact the alleged infringer. More importantly, the copyright owner is statutorily limited to using that information exclusively for purposes of enforcing their copyright. Compare that to the John Doe alternative where a copyright owner can request anything related to the ISP subscriber account, including user habits, website visits, payment records. And once that information is provided to a copyright owner, there are no statutory restrictions whatsoever on how it can be used or with whom it can be shared. RIAA and the copyright community as a whole are committed to protecting the privacy of individuals and support the balance that was struck by this Committee and the Congress in the DMCA to protect both privacy and ensure the enforcement of copyrights. Congress anticipated the needs of copyright owners and the rights of individuals in the DMCA, and enacted a provision that has been upheld and validated by the courts and constitutional scholars. As the content community continues to face the challenges of digital piracy, Congress must ensure that tools are available to limit costly damages in an expeditious manner. Our Nation's cultural assets, balance of trade, and world leadership in intellectual property depend on it. Thank you very much. [The prepared statement of Mr. Sherman appears as a submission for the record.] Chairman Hatch. Well, thank you. General Barr, we will turn to you. STATEMENT OF WILLIAM BARR, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, VERIZON COMMUNICATIONS, WASHINGTON, D.C. Mr. Barr. Thank you, Mr. Chairman, Senator Durbin. We believe that the health and the vitality of the Internet as a medium of communications in our society depends on the availability of a rich array of content, which in turn requires vigorous protection of intellectual property rights. But at the same time, we think it also depends on the public's confidence in the privacy and security of the Internet as a communications medium and their assurance that there is some protection for private information. Our concern is that a very ill-conceived blunderbuss approach to addressing the first set of issues, intellectual property, is being applied in a way that is riding roughshod and ultimately sacrificing very real privacy and safety concerns. Now, from the opening statement of Mr. Sherman it would appear that Verizon stands alone in this, when, in fact, as the Committee is aware, there are 92 groups supporting our position, including library associations, civil liberties groups, child safety groups, and numerous other Internet service providers. Mr. Sherman sort of suggests that our interest in privacy is somehow this new-found interest and is not really altruism here; it is economic interest. Well, be that as it may, our point in our opening statement is that privacy is important to the well-being of the Internet, just as important as intellectual property rights, the ability of individuals to know that their private information is not going to be handed away willy-nilly to other people. Now, I think what is going on here is that the RIAA is taking the subpoena provisions of the DMCA and radically expanding them to apply to an area that they were not intended to apply to. That is our view. This sweeping subpoena that they claim, bereft of any of the safeguards that have been employed throughout our history to protect privacy concerns and place checks on the availability of private information, poses, we think, a threat to personal privacy and First Amendment rights. We further think that the tactic of using these massive subpoenas has really sidetracked the recording industry into this inter orem campaign against 12-year-old girls rather than pursue collaboratively with the network industry a long-term, effective technological solution, as Congress explicitly envisioned in the Act, working collaboratively to develop a long-term technological solution to this problem. Our view is that both the take-down provisions and the subpoena provisions in the Act were expressly directed at infringers who were storing material on service providers' facilities. So they were distributed copyrighted material from websites that were hosted on the internet service providers' facilities. We believe the subpoena provisions were meant to allow for the identification of the individuals who were storing that information on the facilities of the Internet service providers. Indeed, our view is that the subpoena provisions explicitly cross-reference the provisions dealing with the storage of information three times. Now, in that context, there are some safeguards for these privacy concerns because we have control and access to that information. It is right there on our system, and when we are served with a subpoena, we can immediately verify whether there is a legitimate basis for the property owner's concerns. Further, the privacy concerns are somewhat diminished because the party has voluntarily given this information to us to store. Indeed, other provisions of the Act, sections (f) and (g), provide protections to owners who have done that. Our view is that the subpoena provisions were never intended to allow private parties unfettered power to delve into what individuals have on their own desktop or laptop hard drives, or into the nature of direct communications from one computer to another. The RIAA is claiming a radical new process--it is heretofore unknown in the law; the district court acknowledged it was a novelty--to obtain personal and private information about electronic communications without the safeguards that have always been applied even to government investigations or in civil lawsuits, and without any accountability for how that information is used. The process goes like this. When people are using the Internet, they can generally rely on some protection of their identity. When they are browsing or in chat rooms or sending e- mails, the computer does reveal a number, the IP address, which cannot be correlated to an individual. But under RIAA's interpretation of the Act, any individual can simply fill out a one-page form. They can assert that they have a copyright interest. It doesn't have to be a registered one that would serve as the basis of a lawsuit, and Federal copyright protections cover a broad array of any expressive activity--pictures, content of e-mails, and so forth. Then they can assert a good-faith belief that their copyright interest is being infringed, and that is the basis upon which they can compel the surrendering of any individual's name, address, telephone number. And now they claim they can get the e-mail address of any Internet user. Not only do they get that identification information, but they are able to correlate it to specific communicative activity on the Internet, to those individuals. This is not done in connection with a pending lawsuit or a grand jury investigation. There is no judicial supervision of this. Nobody looks at this at the courthouse. It is just served on us and we have to comply. No one reviews the bona fides of the requester. No one reviews whether there is, in fact, copyright information involved. No one determines whether, in fact, there is a reasonable basis for the allegation. Unlike the information that the government is supplied in an investigation, there are no express safeguards provided for this information and how it is used. There is no requirement to file a civil lawsuit. There are no express sanctions or penalties for the misuse of this information or for its disclosure into the public. There are countless illicit ways that this information can be used without the victim every knowing, without anyone ever knowing how it came to be that their identity was disclosed and exploited in some way. This goes far beyond the power that this Congress gives Federal investigative agencies who are investigating things like pornography, who are investigating things like terrorism. The Government doesn't have this power. This is very analogous, for example, to pen registers and to trap-and-trace. The Government just can't go and fill out a one-page form and claim a belief that it would be helpful. They have to have a judge review it and a judicial order based on a certification that it is relevant to an ongoing investigation, and that material is under seal. So when the Government acts in an investigative capacity, this Congress, consistent with constitutional liberties, has ensured that there are safeguards. But given the sweeping nature of this power, deputizing commercially-interested individuals to go out and do this kind of thing, abuses aren't just possible, but abuses are inevitable. This is not just a tool that is going to be used by legitimate groups like RIAA. This is a tool that can be and is now being used by pornographers themselves. It can be used by pedophiles and stalkers. Think about the pornographers. We have already had a case since the district court decision where a group that makes gay pornography has sought the names of 59 individuals who they claim were exchanging this pornographic material. And now they have announced, as RIAA has, their own amnesty program. Do you know what the deal is? If you buy our hard-core pornography, we won't come after you. Just think of all the abuses that pornographers can use. People visit a website, they get the IP address, and they can blackmail those individuals. Now, think of stalkers. There is nothing in here that requires a stalker to give his real name, or a pedophile. They meet someone in a chat room, go down to their local district courthouse, fill out the form, use a false name, and we have to surrender the information, the identity of these people. That is an outrage. That doesn't exist in any other context in the law and it has to be stopped. Even where there are legitimate interests, such as RIAA's interest, the blunderbuss power that they are applying here inevitably is going to result in mistakes and abuses, and it already has. There is now a sub-industry of bounty hunters that goes about hunting down people. Congress is many times worried about bounty hunters when they are involved in law enforcement activities, but now we have commercially-interested bounty hunters who can go and get these documents. We have robots like in ``Minority Report,'' you know, spiders crawling around the Internet with little lights on their foreheads looking for files. That is all very fine, except they find a book report, which they did, a kid's 1- kilobit book report on Harry Potter, and they get slammed by the RIAA. Just recently, they tried to shut down the computers of, I think it was Penn State astronomy department because it found the name Usher in a file; obviously, in their mind, some kind of recording artist, but, in fact, the name of the department head. So this is the kind of force that has been loosed onto the Internet, and our position is if this is what Congress wanted, it is a disgrace and it should be stopped. If this is not what Congress, if this was not the intent of the legislation, then Congress should act now and deal with it, and not wait for years of litigation and this kind of activity to bring a terror campaign against individuals without any kind of due process. Congress did spell out how it thought, and rightly so, in my view, this was to be addressed in Title I of the legislation, which is technological protection for the content. The content can be wrapped. It can be protected through encryption, it can be protected through access code protection. Working collaboratively with the networks, that can be pretty much immune from attack and defeat. In fact, Congress has passed laws in Title I saying it would be a crime to try to circumvent those kinds of protections once we worked them out. But ever since they have embarked on this cat-and-mouse game with teenagers, they have had no interest in coming to the table and talking about this long-term technological problem, which means what? Which means you are going to have a technological arms race with efforts to evade this and hide IP addresses and all this cat-and-mouse stuff going on, instead of something that Congress has already laid the ground work for, which is a regime of protecting content, of having the networks and the content providers work to develop a scheme, and has already passed a law saying it is criminal to try to evade that scheme. So this is largely a wasteful, self-defeating effort. Thank you, Mr. Chairman. [The prepared statement of Mr. Barr appears as a submission for the record.] Chairman Hatch. Well, thank you. We are going to need to have you give us your best ideas as to how to resolve some of these problems that you have raised. Ms. Peters, we will turn to you. STATEMENT OF MARYBETH PETERS, REGISTER OF COPYRIGHTS, U.S. COPYRIGHT OFFICE, WASHINGTON, D.C. Ms. Peters. Mr. Chairman, Senator Durbin, I am pleased to testify at this very timely hearing. Senator Hatch, you were among the leaders in drafting and enacting the Digital Millennium Copyright Act, and I know that these-- Chairman Hatch. You would have to say that after General Barr's comments. [Laughter.] Ms. Peters. I am going to say it is a good thing. Mr. Barr. Properly interpreted, it is a good thing. Chairman Hatch. Excuse me to interrupt again. We need both of your ideas on how we solve these problems because much of what he says I agree with; in fact, most everything. Yet, I see where you are right, too. In other words, RIAA should not have to put up with the wholesale pilfering of your copyright materials. So we need to have some help here and maybe if you two could get together and give us some advice, it would be very helpful because this is important stuff. Then, Ms. Peters, of course, we are going to rely on you to help us, too. Go ahead. I am sorry to interrupt you. Ms. Peters. What I was going to say is that I know these issues are important to you, as they are to me. In 1999, Napster popularized peer-to-peer technology and tried to turn it into a profit-making business. In a remarkably short period of time, Napster was being used by millions to copy and distribute an unprecedented amount of copyrighted music. We agreed with the Ninth Circuit's holding that Napster users infringed at least two of the copyright-holder's exclusive rights--reproduction and distribution. Since Napster's departure, other businesses utilizing peer-to-peer technology, such as Aimster, Grokster, and Kazaa, have appeared. Mr. Chairman, make no mistake, the law is unambiguous. Using peer-to-peer networks to copy or distribute copyrighted works without permission is infringement, and copyright owners have every right to invoke the power of the courts to combat such activity. Every court that has addressed the issue agrees. Copyright law has long recognized that those who aid and abet copyright infringement are no less culpable than direct infringers themselves. Based on this principle, the Ninth Circuit Court correctly found that Napster was both vicariously liable and a contributory infringer. Unfortunately, the Napster decision was not the last word on the matter. Earlier this year, a Federal court in California surprised many when it held that Grokster and Streamcast are not liable as secondary copyright infringers. Mr. Chairman, these are people whose businesses are dependent upon massive copyright infringement. Any application of the law that allows them to escape liability for lack of knowledge of those same infringements is inherently flawed. The Grokster decision was wrongly decided, and if it is upheld, it will be a major impediment to the fight against massive online infringement that is so rampant today. Grokster is not the last word on the subject, either. The decision in Aimster is reassuring. Hanging over all of these cases, however, is the Supreme Court's decision in Sony. The correct application of the doctrines of secondary liability in the Sony case should produce findings of liability for the proprietors of Grokster. If that is not the result, Sony should be revisited by the Supreme Court or by Congress. Unless and until the Grokster decision is overruled, copyright owners have no choice but to pursue the individual peer-to-peer users who are actually engaging in infringement. While copyright owners have expressed regret that they are compelled to take this step, they need offer no apology. People who use peer-to-peer technology for unauthorized reproduction or distribution of copyrighted works are breaking the law. Litigation and even publicity about the subpoenas have made clear to everyone that the so-called file-sharing of copyrighted works is not an innocent activity without legal consequences. Knowledge that such conduct may lead to expensive and burdensome litigation and a potentially large judgment should have a deterrent effect. Copyright owners have every right to enforce their rights in court, whether they are taking action against providers of peer-to-peer services designed to profit from copyright infringement or against persons engaging in individual acts of infringement. To take action against users of peer-to-peer networks, copyright owners must know who those users are. Congress recognized this and included in the DMCA a process by which owners can learn basic identifying information about alleged infringers from their Internet service providers. As you recall, the DMCA began as an effort to implement the 1996 WIPO Internet treaties. However, as this legislation moved forward, ISPs demanded that it include limitations on their liability for copyright infringements carried out over their networks. Congress heeded this call and provided the ISPs with a huge benefit: virtually no liability for qualifying ISPs. This was balanced by placing on ISPs certain obligations. One requires ISPs to respond expeditiously to subpoenas seeking identifying information about subscribers accused of copyright infringement. The ability of copyright owners to use Section 512(h) is a critical part of that bargain, allowing copyright owners to pursue primary infringers. Recently, the scope and constitutionality of Section 512(h) has come under attack. In the RIAA-Verizon litigation, Verizon claims that the subpoena power of 512(h) is inapplicable to the mere conduit activity described in 512(a). As the district court held, the plain language of 512(h) demonstrates that this interpretation is not correct. I agree. The statutory text confirms the compromise that copyright owners and ISPs are to work together to remedy infringement in all categories of activities. The United States has intervened in the Verizon litigation to defend the constitutionality of Section 512(h). The Copyright Office has assisted the Justice Department in this effort and we firmly believe that 512(h) is appropriate and constitutional. One observation. The alleged constitutional infirmities apply to any subpoena applied pursuant to 512(h), not only to subpoenas to identify participants in peer-to-peer networks. And if 512(h) is declared unconstitutional, I believe the result would be that 512 as a whole, including the limitations on ISP liability, would be unconstitutional. In conclusion, the DMCA represents a carefully crafted and balanced bargain which utilizes both enlightened self-interest and the incentives created by doctrines such as secondary liability to encourage all stakeholders to work together. Some are now selectively challenging key components of that bargain, particularly in the context of peer-to-peer technology. Taken together, the positions of Grokster along with arguments now made by Verizon and others, if they prevail, will leave copyright owners with little or no remedy against the most widespread phenomenon of infringement in the history of this country. Thank you. [The prepared statement of Ms. Peters appears as a submission for the record.] Chairman Hatch. Well, thank you. You answered one of my major questions there. Let me just say before I turn to Senator Durbin, who will be our last questioner, I want to thank the members of this panel for your testimony. I think that these issues have not ripened enough to permit this Committee to determine whether Section 512(h) works as intended or whether legislation could be brought to improve it. The first court challenges to 512(h) subpoenas are still ongoing and I don't think we can yet determine whether these subpoenas are being used responsibly to identify alleged infringers. More actual experience with these provisions could reveal potential improvements to them. Perhaps in the meantime, what I would like to do over the next 6 months is I would like to ask Verizon and the 92 companies that are supporting your position, General Barr, and RIAA and any affected consumers to report back to me and my staff and Senator Leahy and his staff at least bi-monthly on how the subpoenas are operating and how further legislation might improve them. In these reports, I would ask both of you to keep two principles in mind. First, the Section 512(h) subpoena process exists because ISPs, as Ms. Peters made clear, argued successfully and over the objections of the content creators that they should be immune from secondary infringement liability because individuals misusing ISP services were the proper targets for Internet copyright infringement. This broad immunity ensured, as Ms. Peters said, that only viable targets for copyright enforcement would be individual Internet users who guessed wrong about whether Internet content respects the complex strictures of copyright. The interests of those burdened consumers, it seems to me, are critically important. But a claim that their interests cannot be reconciled with content creators' need for efficient identification mechanisms seems like a claim that the intent of Section 512 cannot be achieved without the reopening of all of Section 512. That is not a claim that should be made or accepted lightly. Secondly, the Committee needs statistically valid data to support any claims about consumer preferences. Copyright- holders have long used means short of Federal lawsuits to resolve disputes with alleged infringers. Valid data would help this Committee determine whether individual Internet users actually prefer a mechanism that requires them to be identified not as the private recipients of cease and desist letters, but as named defendants in public Federal court complaints seeking damages, statutory damage fees, and injunctions. So what I am hoping, Mr. Sherman and General Barr, is that your organizations will help us here and provide this Committee with--I would like bi-monthly reports and proposals that I have requested. Now, that is a little work, but my goal here is not to find fault with either of you. I think both of you make good cases here. It is try and get this system so it really does work, work efficiently, work constitutionally in a sound manner, and work to the betterment of copyright protection. It is complex. I mean, it took us 5 years to get the DMCA passed, and I can remember all of the back and forth, absolute gut fights that we were in to get that done. I have no doubt that it is not perfect. On the other hand, I think we might be able to resolve some of these problems in a way that would be mutually beneficial and perhaps satisfactory. Naturally, content providers and copyright owners have a tremendous interest in their protection. Naturally, service providers have a different set of interests, as well as those interests, and we need some help here as to how best to solve these problems. I think these young kids or anyone else wouldn't think of walking into a record store and stealing CDs right off the shelf, and yet that is exactly what they are doing over the Internet. And that is just one aspect of it. There are movies, books, CDs, you name it, and we have got to find some way to have our society be honest about these very important copyright protections. So if I could get some help from both of you, I would appreciate it and I will count on it. Senator Durbin, you are going to be our last and then I have got to close up shop here. Senator Durbin. Thanks, Mr. Chairman. I am going to be brief here. Mr. Barr, I thought you made a pretty compelling argument, but I am really troubled by this brochure if it accurately depicts what you were advising your customers to do, which is to use the free sites, the P2P sites, for acquiring music. It strikes me that you don't come to this discussion with clean hands. Mr. Barr. Senator-- Senator Durbin. If I can finish, it strikes me that you are encouraging them to use these sites which basically open up their privacy to the world, and I think Judge Bates made that observation when he said that this peer-to-peer file-sharing, as quoted by Mr. Sherman, ``It is hard to understand just what privacy expectation a user has after essentially opening his computer to the world.'' It strikes me that it sounds like you are encouraging Lady Godiva to get on the horse and then complaining that the arresting sheriff is sneaking a peek and invading her privacy. I mean, I don't think you can have it both ways. Mr. Barr. Well, Senator, if you have the brochure in front of you, you will see that the very first paragraph of the brochure says that the courts have ruled that groups like Napster and that kind of sharing is a violation of law, and that it is quite possible to get your needs satisfied on the Internet with a completely clean conscience. That is the first paragraph. The paragraph that Mr. Sherman quoted from, after elision-- you will note that that paragraph starts off by listing a number of sites, like Rhapsody and MP3, and so forth, and then makes the distinction between subscription sites and free sites. Now, free sites can be authorized sites. Free sites is not a synonym for P2P. So that paragraph was intended to list the lawful, authorized sites, some of which are subscription, some of which are free, and then explain the difference between subscription and free sites. Senator Durbin. So, Mr. Sherman, are you misrepresenting this by saying that this quote and the one that you have highlighted here are an invitation to P2P and an invitation to squander your privacy? Mr. Sherman. No. I stand by my quotation. I will admit that the 2003 version is an improvement over the 2002, which specifically proposed people to go to the Morpheus site, which is one of the illegal sites that we have had the most problems with. So Verizon has improved it a little bit. Just when you look at ``the free sites have pretty much everything you want, but you may be pelted with some unwanted ads,'' how about the fact that you may also be engaging in illegal activity about which the recording industry announced 6 months ago that we intend to bring lawsuits to enforce our rights? That would be a service to the DSL subscribers, not the sort of notice that is being given here. Senator Durbin. Let me ask you about what was announced yesterday by your industry. Are you headed to junior high schools to round up the usual suspects? How are you going to deal with this in a fashion that doesn't turn off your potential customers for a long time to come? Mr. Sherman. Well, the word ``customers'' is an interesting term because if somebody doesn't actually buy your product but simply steals it, what do you consider them? What is the shoplifter at Saks Fifth Avenue? Is that a customer? Senator Durbin. So you write them off? Mr. Sherman. Well, no, we don't write them off. We try to bring them back, and we try to bring them back by letting them know that this is really illegal activity, that they are not anonymous when they engage in it, and that there can be consequences. We have done a lot of market research and we have come to the unhappy conclusion that people don't shoplift not because it is immoral or because it is wrong, but because they fear they may get caught. And we are trying to let people know they may get caught, and therefore they should not engage in this behavior. Yes, there are going to be some kids caught in this, although you would be surprised how many adults are engaged in this activity. This is not just children. But we think that it is great for parents to know what their kids are up to. If a child brought home a shoplifted CD from Tower, I don't think the average parent would say, oh, look how cute, he loves music. They would make him take that CD back and lecture him about honesty and theft, and so on and so forth. Parents need to know what their kids are doing when they are downloading music from the Internet, too, as well as everything else we have talked about at this hearing today--the access to pornography whether they want it or not, the child pornography, the security threat, the privacy threat. Parents may not realize that their kids are opening up the parents' hard drive for the rest of the world to see. That would be a service if ISPs notified their customers that there is a privacy risk to engaging in illegal file-sharing activity on these peer-to-peer networks. Senator Durbin. I think that is a very constructive suggestion, and I don't mean to downplay the threat to your industry when I suggested that you are going after adolescents. I think it is a serious problem. It is theft and it should be viewed as such. I think you have a tough public relations campaign here to go after the offenders without appearing too heavy-handed in the process. I would say, Mr. Barr, that we have found, I think, in both political parties that privacy is one of the most important things that Americans want to protect, whether it is medical privacy or financial privacy. I think we are learning. Senator Hatch and I--and I respect his leadership on this--are learning and hoping that we can make the laws that we have passed better in the future. I thank you all for coming to this hearing. Thank you, Mr. Chairman. Chairman Hatch. Well, I appreciate your kind comments. I have to say that nobody respects privacy rights better than I do, and I understand all of the concomitant liabilities you would have if those privacy rights are not respected. There are all kinds of problems that would come forth. All three of you have been terrific. I think we have benefitted a great deal from this, and I agree with you that, yes, there are some children doing this, but there are a lot of adults doing it as well, who ought to know better and who deliberately do it knowing that it is wrong. It is just time for people to wake up. I would hate to get to that point where we have to give three warnings and then blow up the set. I am speaking tongue- in-cheek to a large degree, but there is still a lot of truth to that, and I have to say that this hearing has been very beneficial. Ms. Peters, I have always respected you. I think you are one of the best servants in Government that we have, and we appreciate your viewpoint here today. It was well put and something I am extremely interested in, and we appreciate the efforts that you have put forward. Help us to be able to do a better job to be able to protect the respective interests and to resolve some of these difficulties. I have no ax to grind here. I just want to make sure that we resolve these difficulties that exist and that we live within the framework of laws. To that degree, I think you folks can be of tremendous help to us. So with that, I want to thank you again. Let me just make one more comment. The deadline for submitting written questions to witnesses will be 5:00 p.m. next Tuesday, September 16. So I hope all staff will pay attention to that. Thanks so much, and we will recess until further notice. 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OMITTED] T3014.168 [GRAPHIC] [TIFF OMITTED] T3014.169 [GRAPHIC] [TIFF OMITTED] T3014.170 [GRAPHIC] [TIFF OMITTED] T3014.171 [GRAPHIC] [TIFF OMITTED] T3014.172 INDECENT EXPOSURE: OVERSIGHT OF DOJ'S EFFORTS TO PROTECT PORNOGRAPHY'S VICTIMS ---------- WEDNESDAY, OCTOBER 15, 2003 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 2:11 p.m., in Room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, Chairman of the Committee, presiding. Present: Senators Hatch and Grassley. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Chairman Hatch. Good afternoon. Today, we will be conducting an oversight hearing on the Department of Justice's efforts to prosecute child pornography and obscenity. As many of you know, pornography is a growing problem in America. For example, in a recent ``ABC Primetime Thursday'' story, Diane Sawyer stated that the pornography industry is estimated at $10 billion, which is bigger than the NFL, NBA, and Major League Baseball all combined. And it is getting worse with the advent of the Internet. Pornographic web pages now number 250 million--250 million--and are growing at an unprecedented rate. It is estimated that porn on the Internet will grow to become a $7 billion--that is with a ``B''--billion dollar industry in the next 5 years unless we have aggressive law enforcement. The National Society for the Prevention of Cruelty to Children estimates that there are 140,000 images of child pornography online. The typical age of children depicted in these images is between six and 12, but the profile is getting even younger. In addition, adult pornography has become readily available to minors. There are currently 28 million children and teenagers with access to the Internet and an additional 50 million globally are estimated by the year 2005. Nine out of ten children, ages eight to 16, have viewed pornography online, most of them unintentionally and when using the Internet to do their homework. And those children who seek it out of curiosity have absolutely no difficulty or trouble getting it. Ninety- seven percent of adult websites do not require adult verification. The result of all this porn is that there are 11-, 12-, or 13-year-old children being treated for pornography addiction. As Professor Victor Cline previously testified before the Child Online Protect Act, Commission, or COPA, the overwhelming majority of pedophiles use child pornography to simulate and whet their sexual appetites before abusing children. They also use child porn to desensitize children and lure them into participating in sexual activity. In addition, as the ``ABC Primetime Thursday'' piece made clear, the victims of pornography are not just addicts and rape victims, but young, innocent teenagers who go to Los Angeles with dreams of becoming a movie star and instead get caught up in this sordid industry. I have always believed very strongly in protecting children from this type of offensive material. I sponsored the PROTECT Act, which the President signed into law 6 months ago. This is one of the most significant pieces of child crime legislation that Congress has passed in decades. It gives law enforcement the tools it needs to effectively prosecute child pornographers. In addition to authorizing criminal prosecutions of child pornographers, the Act provided funding for more prosecutors and investigators and established a cyber tip line to report online child exploitation. It also created a national registry of child pornographers. I am currently considering legislative solutions to the many risks inherent in the use of peer-to-peer networks. Almost half of the people who use peer-to-peer networks are minors. Recent studies have shown that millions and millions of pornographic files are available for downloading on these networks at any given time. Even more disturbing is that searches on these networks use search terms that a child would be expected to use, such as Harry Potter or Pokemon, and they turn up an enormous percentage--over 50 percent in one study according to the GAO--of pornographic materials, including child pornography. Now, this is simply unacceptable. Many parents, possibly the majority of them, are unaware of this problem, and I think this requires our immediate attention. I look forward to hearing about DOJ's efforts to combat both child pornography and obscenity. This is a growing problem that we need to attack aggressively. We cannot sit quietly and hope that this whole set of problems is going to go away. The hearing today will consist of two panels. The first panel includes three representatives from the U.S. Department of Justice, John Malcolm, Deputy Assistant Attorney General of the Criminal Division; J. Robert Flores, Administrator of the Office of Juvenile Justice and Delinquency Prevention; and Mary Beth Buchanan, U.S. Attorney for the Western District of Pennsylvania. In addition, we have Lawrence Maxwell, Inspector in Charge from the Postal Inspection Service. The second panel consists of Bruce Taylor, President and Chief Counsel to the National Law Center for Children and Families; Detective Steve Takeshita, Officer in Charge of the Pornography Unit in the Los Angeles Police Department; and Emeritus Professor from the University of Utah, my own friend, Dr. Victor Cline, who, of course, is one of the great experts in this field and child psychiatry. Welcome to the hearing. I want to welcome all of you and I look forward to listening to your testimony. In addition, at this time, I would like to submit for the record the written testimony of Donna Rice Hughes, President of Enough is Enough, an advocate of protecting children from pornography on the Internet. [The prepared statement of Senator Hatch appears as a submission for the record.] Chairman Hatch. We will start with you, Mr. Malcolm. We will take your statement first and then just go across the table. STATEMENT OF JOHN G. MALCOLM, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Malcolm. Thank you, Mr. Chairman. I thank the Committee for inviting me to testify about the Department of Justice's enforcement efforts against those who produce and disseminate adult obscenity and child pornography. In addition to pornographic material, which is constitutionally protected, adult obscene material and child pornography, which are not constitutionally protected and which are illegal, are unfortunately pervasive in our society. While there is no doubt that the Internet provides access to a highly diverse network of educational and cultural content, it is also responsible for the proliferation of adult and child pornography and obscene material. Indeed, offensive material that used to be largely unavailable to average citizens and children is now largely unavoidable. Offensive material is readily available to anyone with an Internet connection, accessed oftentimes by unsuspecting children and adults who had no intention to seek such material and no desire to view it. The proliferation of this material and the desire by pornographers to differentiate themselves in a highly competitive market prompted pornographers to produce ever more offensive material. In addition to child pornography, pornography depicting and glorifying bestiality, scatology, and rape are readily available and aggressively marketed. The harmful effects of obscene material and the victims of this sordid industry are very real. The images produced promote the idea of sex without consequences, such as unwanted pregnancies or sexually-transmitted diseases. The victims, usually women, are objectified and demeaned, presented and completely nondiscriminating with respect to the number of type of sexual partners they have and as being aroused and gratified by being beaten, tortured, or raped. Very few women grow up dreaming of being filmed having sex with an animal or being raped and beaten by multiple partners, and very few who see these powerful images and absorb the anti- social values they portray can remain unaffected by them. The negative lasting impact that this has on the participants who are in these images and on the attitudes that are formed by the predominately male viewers who see them is incalculable. The negative impact and effects of child pornography, while more readily apparent and universally recognized, are too horrifying to think about. Images of young teenagers, prepubescent youngsters, and literally infants engaging in sex of all types with other children and adults are readily available and would make you sick to your stomach. As well, pedophiles frequently use child pornography and obscene material to lower the inhibitions of their victims and to persuade them that adult-child sexual interaction is perfectly acceptable. Too often, this pernicious ploy works. Attorney General Ashcroft publicly stated that the Department is unequivocally committed to the task of prosecuting obscenity. Since that time, attorneys with the Child Exploitation and Obscenity Section, CEOS, which I oversee, working with prosecutors and U.S. Attorneys' offices around the country, have created an obscenity enforcement strategy and have made tremendous progress in combatting the scourge of obscenity. In order to aggressively and effectively combat the online distribution of obscenity, the Department created the High Tech Investigative Unit. This unit is staffed with computer forensic experts who bring their special technological expertise to bear against Internet-based child pornography and obscenity offenders, many of whom feel impervious to law enforcement because of the perceived anonymity offered by the Internet. Working side by side with CEOS trial attorneys and Federal agents, these computer forensic specialists meet the challenges presented by the use of emerging Internet technology and are poised to meet new challenges that will surely develop as technology evolves. CEOS also conducted a symposium on obscenity in June 2002 to discuss strategy. The Attorney General personally addressed the audience and, via live simulcast, U.S. Attorneys' offices throughout the country. In October 2002, CEOS presented an obscenity training seminar and a second annual obscenity training seminar began today and will last the rest of the week. Through such training, the Department hopes to develop a framework for sustained long-term enforcement of Federal obscenity laws to complement the anti-obscenity efforts of State and local prosecutors and investigators. I am pleased to state that the Department's efforts are starting to bear fruit. To date, during this administration, there have been 19 convictions involving Federal obscenity statutes. Two defendants, including a former police officer who allegedly distributed rape videos, are on trial right now in Federal court in Dallas, Texas. Two other cases of large-scale distributors of allegedly obscene material have been indicted, and approximately 50 Federal obscenity investigations are ongoing at CEOS and in districts throughout the country. While the Department is committed to a renewed enforcement agenda with respect to adult obscenity, and despite the obvious drain on resources by the war on terrorism, the Department continues to vigorously enforce child sexual exploitation laws. Indeed, according to the Executive Office of U.S. Attorneys, in fiscal year 2002, 1,199 cases were filed, a 22 percent increase over the previous year. Internet investigations often uncover large child pornography groups with hundreds and sometimes thousands of targets. The Internet affords the pedophiles the ability to communicate with a large number of people with minimal effort. CEOS is currently involved in nine national significant operations. We work very closely with the U.S. Attorneys' offices and with the Internet Crimes Against Children Task Forces, and I am proud to say that though these operations are ongoing, several active molesters have already been caught and convicted and several children have been identified and rescued. Mr. Chairman, we are under no illusions that this task is going to be easy or that we are not going to face challenges in the future. Nonetheless, the Department of Justice will do everything within its power to curb the proliferation of obscene material in our society and to protect children, both at home and abroad, from the predatory activities of pedophiles. Thank you. Chairman Hatch. Thank you. [The prepared statement of Mr. Malcolm appears as a submission for the record.] Chairman Hatch. Mr. Flores, we will turn to you. STATEMENT OF J. ROBERT FLORES, ADMINISTRATOR, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, OFFICE OF JUSTICE PROGRAMS, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Flores. Mr. Chairman, I am Bob Flores, the Administrator of the Office of Juvenile Justice and Delinquency Prevention. On behalf of the Department, I am grateful to have an opportunity to testify today on the subject of protecting the victims of pornography. The office that I head continues to commit resources to protect children and families from the harms associated with sexual exploitation, sexual abuse, child pornography, and sexual predators. Historically, OJJDP has provided that assistance through its administration of funds, technical assistance and training, as well as information that we distribute and disseminate to the public at large. I want to assure you the commitment has never been stronger, and as I will detail for you, is being expanded to provide the help you seek for children and families, and that the President and the Attorney General are publicly committed to providing. OJJDP has been involved with tackling the child pornography and computer facilitated child sexual exploitation problems since 1998, when the first ten Internet Crimes Against Children task forces, or ICAC task forces, were identified and funded. Last year, the President sought and obtained from Congress additional funding to assure nationwide coverage and the task forces now number 40, but we expect by the end of this year to bring the number up to 45. They provide regional assistance. They are made up of Federal, State, and local technical and investigative experts and offer prevention and investigative services to children, parents, educators, law enforcement officers, and others working on these issues. We recognize that the increasing online presence of children, the proliferation of child pornography, and the lure of predators searching for unsupervised contact with children, represents a significant threat to the health and safety of our families and a formidable challenge for law enforcement today and into the foreseeable future. There is a tremendous amount of work, however, that has already been done. We have been working together with the Department's Criminal Division and with other departments. I have also brought this matter to the attention of the Coordinating Council on Juvenile Justice and Delinquency Prevention, which now has a Technology Subcommittee. The ICAC task forces alone have been responsible for over 1,500 arrests in the past 5 years, with nearly 500 of those taking place in just the past 12 months. In addition to these arrests, the ICAC task forces have made nearly 2,600 case referrals to non-ICAC law enforcement agencies. Of the 14,000 cases the ICAC task forces have been involved in over the past 5 years, either through actual investigations, referrals, or technical support, nearly 11,000 of those have been directly related to the possession, distribution, or manufacturing of child pornography. What are the next steps, however? Children are still at significant risk of exploitation. Much of the government's efforts have been focused on investigation and prosecution after the act of exploitation has occurred. For that reason, the Department, at the direction of the President and the Attorney General, is expanding the traditional efforts to include a focus on prevention, and cleaning up the cyber environment in which our children and families learn, play, and work. OJJDP will contribute to this effort by targeting the distribution of obscene material to children. This alarming trend has a two-fold impact. First, as noted previously, while predators use child pornography to recruit, seduce, and control future victims, they also often use adult pornography and obscene material, as well as material harmful to minors, to break down a child's barriers and desensitize them as a means to lure and seduce them into abuse. Secondly, the distribution of obscene material to children is the commercial porn industry's vehicle, intentional or not, to create a new generation of pornography junkies. Some children are drawn to the commercial websites through the manipulation of common and well-known children's website names. Other children encounter this as a result of pornography's pervasive presence on the Net. We must address not only the predators and the exploiters, but we must also address those who help create the atmosphere in which children and families who use the Internet are deluged by illegal and unwanted pornography. Today, Senator the Internet is so polluted that it is difficult to pick out a single item of garbage. Moreover, as the pornography morass has grown, it is now much easier for a predator to find a place to hide amid the garbage. The decision to allow Internet pollution to grow, and with it the sense that anything goes, has cost our children a great deal. Thus, we must begin to look at the illegal activity on the Internet as a whole, and send a clear message that the law does apply to this critically important medium and that we will not abandon it to those who would abuse it. In response to this, I have directed the ICAC task forces to include, as part of their investigative effort, a new focus on adult obscenity cases when a child is the target of the material; or if such material has been used to seduce or facilitate the exploitation or abuse of a child. In addition to this, it is important to make sure that the community at large is educated, if we are to have hope that we can actually change the culture on the Internet. This pertains not only to the child pornography issue, but to responsible use of the Internet, including issues that are as important for industry as they are to any family--the theft of intellectual property and copyright materials. One of the efforts that we are going to launch is the erection of a comprehensive education and prevention strategy. We have already taken the first step in March of this year by having a meeting where we brought together government as well as private entities, agencies, and organizations. We will continue in November as we meet together and again and really focus on what is necessary to create a strategy that doesn't depend just on the Justice Department, but includes the Health and Human Services Department, the Department of Commerce, the Department of Labor, and the Department of Education. Each of the departments has a role to play. I look forward to an opportunity to report back to this Committee and to keep your staff informed as we continue. I have great confidence that we can succeed at this point in time because we stand in a different place now than we did a year ago. Corporate America has recognized, perhaps in a way it wished it did not, that an environment of lawlessness and an inability of Internet users to properly translate how law operates in the real world to the cyber world, jeopardizes their existence. Parents have come to understand this through tragedies. I am encouraged that we are here and that much progress has been made. I look forward again to having an extended conversation with your staff, and I am pleased to take any questions that you may have. Chairman Hatch. Thank you, Mr. Flores. [The prepared statement of Mr. Flores appears as a submission for the record.] Chairman Hatch. We are going to interrupt for a second here. The distinguished Chairman of the Finance Committee would like to make a statement, and we will turn to Senator Grassley at this time, and then I know that he has to leave a little early because of the Medicare prescription drug conference that both of us are supposed to be to. But he is going to carry the banner for me over there this afternoon. Senator Grassley? STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. I am very happy to have your cooperation so I can appear for a short period of time at this hearing, because I have been very much interested in this going back to the Farber Act a long time ago, in the mid-1980's, I believe it was. But most importantly, Mr. Chairman, thank you very much for your interest in this over a long, long period of time, as well, probably before my involvement in it, and your continuation through this hearing. Hardly a week goes by that I don't receive a letter from an Iowan concerned about pornography and its harmful effect on family. My constituents want to know what the government and the Congress are doing about all the smut that invades their homes by way of the Internet and cable television. So I want you all to know, and particularly you, Mr. Chairman, that I appreciate this hearing because it is a partial answer to my constituents' concerns. It seems that since the mid-1990's, Congress has made some valiant attempts to pass constitutional protections for children using the Internet. So far, we have a mixed record. The Supreme Court has overruled one of our bills, the Communications Decency Act, which tried to protect children from indecent material on the Internet. It upheld one, the Children's Internet Protection Act, which requires public libraries and schools to install Internet filters. And just yesterday, the Court agreed to take up another case, the Child Online Protection Act, which, if upheld, and I am optimistic that it will be, will shield children from material that is, according to the law, quite, ``harmful to minors'' while they surf the Internet. I supported each of these bills and I am very glad that we could get them passed. During the last 10 years, the obscenity and child pornography industry has grown at quantum leaps. It is no coincidence that during the same time, the Department of Justice did precious little in the area of obscenity prosecution. By all accounts, the Clinton Justice Department brought no more than a handful of obscenity prosecutions, and I am forced to believe that that sort of laxity towards this area of Federal criminal law has contributed to the ``Wild West'' environment that we have on the Internet. Unfortunately, some have been critical of the current administration for being slow out of the gate with regard to the enforcement of these obscenity laws. I don't know whether this is the case or not, but I am very happy that the Department of Justice can be here today to discuss their efforts. It is my understanding that the investigation and prosecution of these crimes is complex and time consuming and is further complicated when the Internet is used to distribute this obscene material. In reviewing the testimony, I was particularly glad to hear about the Office of Juvenile Justice and Delinquency Protection's Internet Crimes Against Children task forces that are very important, it seems to me, to leverage State and local resources in the effort to protect children from obscenity as well as child pornography. There is substantial evidence that obscenity is not a victimless crime. According to a report of the Child Online Protection Act Commission, obscenity is a tool used by molesters in child molestation and exploitation. I also agree with Administrator Flores in his assertion that the distribution of obscenity, especially on the Internet, target children with deceptive-sounding website names so that they may reach their next generation of users. The illegal child industry is big, big business and our children are paying the greatest cost of these criminal commercial successes. Because of the harm that obscenity poses for minors, it is critical that the ICACs be given technical assistance and training in how to investigate and prosecute Federal obscenity crimes as well as child pornography. By arming State and local investigators and prosecutors, we will be enlisting an army in an effort to protect women and children from this sort of exploitation. So once again, I thank you, Mr. Chairman. Chairman Hatch. Thank you, Senator Grassley. We appreciate having you here and appreciate the hard work you give us on this Committee and we appreciate your very, very strong interest in this area and finding solutions to these problems, so we appreciate having you here. Next, we will turn to you, and then we are going to wind up with our U.S. Attorney for the Western District of Pennsylvania. STATEMENT OF LAWRENCE E. MAXWELL, INSPECTOR IN CHARGE, FRAUD AND DANGEROUS MAIL INVESTIGATIONS, POSTAL INSPECTION SERVICE, WASHINGTON, D.C. Mr. Maxwell. Thank you, Chairman Hatch. It is an honor for me to be here representing the Postal Inspection Service. I have prepared a written statement, which I would like permission to submit to the record. Chairman Hatch. We will put all written statements in the record as though fully delivered, and any additional comments you would care to make that you would care to augment the record with. Mr. Maxwell. Yes. I would like to just make a few comments, first of all to acknowledge my associates here at the table. Truly, this is a team that sings from the same page of music. We have for years. Mr. Malcolm provides the leadership and the direction for law enforcement to get along and to focus on the strategy. Mr. Flores, we have worked with for many years and his oversight with the juvenile programs and especially the ICAC task forces have been very instrumental. It is a very difficult task for him to pull all those different factions together and he has done it tremendously. The lady to my left, she is known to our agency as a tremendous advocator for law enforcement. She is a tremendous prosecutor and we have had a lot of experience with her, as well, and I will let her tell her story in a few minutes. The Inspection Service, and I know you know us well and I know your support goes far and deep. I have seen you at the May Congressional breakfasts. I know you take the time to come and honor the agents there. The Inspection Service itself, we go back, we trace our roots to our founder, Benjamin Franklin, and we are tied into that American institution, the Postal Service, which visits every home. So we have an overriding responsibility and passion to protect the Postal Service because in doing that, it protects the American public. Our mission has changed a lot over the years, but its primary focus hasn't changed. We have roughly 200 statutes which we now enforce, limited to Postal violations. However, we don't stop because the mailings stop. We help our brethren in law enforcement to continue those investigations. In the cases of pornography, obscenity, I am proud to say that Anthony Comstock, who was a Postal Inspector in 1873, and he was the first to draft language for legislation which became the forerunner--it was the Comstock Act and it became the forerunner of 1461, which we utilize today. We were proud to be the first to enforce that law. As we enter this century and we see the evolution change of mail to Internet, still a large part of our cases focus from Internet solicitations. In fact, what we have seen, in 1997, 33 percent of our cases originated online, solicitation followed by some form of mailing. Today, we see 70 or more--considerably more at certain times--originating on the Internet. So we have a concern that things have changed dramatically and we need to keep our enforcement capabilities changing with them and we are striving to do that. Throughout the different legislative enactments, from the Sexual Exploitation of Children Act, the Child Protection Act, which gave additional teeth to trafficking not only for profit. When it became online, we had several cases that blossomed from those online solicitations and one in particular was called Operation Avalanche, which you may be familiar with. It was worked with the Dallas Police Force and the ICAC task force. The case itself had tremendous implications and it was the farthest reaching at the time of an Internet provider of child exploitation materials. It has reached to date globally with 4,000 sites being searched. What I have seen, from my standpoint, it has raised the level of awareness internationally that this is a problem that is global. It is not just restricted to the United States. We now need to focus on our partnerships with those law enforcement agencies and those governments. Since 1997, 257 child victims have been identified and rescued. Since the enactment of the Child Protection Act in 1984, Postal Inspectors have arrested and prosecuted more than 4,000 child molesters and pornographers. We find many, if not most, of the pornographers are indeed molesters, as well. Finally, in focusing on adult obscenity, that would fall to a lesser extent of an effort because we are focusing so heavily on child exploitation with limited resources. The Inspection Service, unlike our counterparts, is not appropriated. We are funded by rate payers' money, so we are limited in terms of our growth potential, but we do a lot with less. We have roughly 50 agents that focus on child obscenity--adult obscenity and child exploitation and those accomplish all of that. Having said that, our counterparts, our partnerships are very valuable to us as we proceed. Most recently, we have focused on Extreme Associates in Pittsburgh, which was prosecuted by Mary Beth Buchanan's district, which shows the length and breadth that this adult obscenity has expanded to on the Internet. And you will be happy to note that we were the very first to apply your PROTECT Act legislation in a case in New York, where we prosecuted the individual who sold, I think approximately three million in licenses for domains. Chairman Hatch. You are going to give us a lot of illustrations how we might even improve on the PROTECT Act? Mr. Maxwell. Correct. Chairman Hatch. Although I think we gave you an awful lot of law enforcement tools with that. Mr. Maxwell. You did. You did. It has been excellent. Chairman Hatch. That is one of the most important Federal anti-crime statutes that we have had the whole time I have been here. Mr. Maxwell. And it couldn't come at a better time, because right now, that is what we are seeing in terms of where they are using it. Chairman Hatch. Good. We would love your advice on it. Mr. Maxwell. Okay. Anyway, I thank you for your time. I am here to answer any questions. Chairman Hatch. Thank you so much. [The prepared statement of Mr. Maxwell appears as a submission for the record.] Chairman Hatch. We are delighted to have you, Ms. Buchanan. You have a great reputation and graduated from my alma mater, as well. I think that just makes it even better. So we are happy to have you here. STATEMENT OF MARY BETH BUCHANAN, UNITED STATES ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA, PITTSBURGH, PENNSYLVANIA Ms. Buchanan. I hope you are not feeling as badly as I do about Pitt's loss to Notre Dame. [Laughter.] Chairman Hatch. Well, I have always rooted for both schools, to be honest with you. Ms. Buchanan. Well, thank you, Mr. Chairman. It is an honor to appear before you today on behalf of my office and on behalf of all of the United States Attorneys around the country who are involved in prosecuting cases of child pornography and obscenity. Before my appointment as the United States Attorney, I served as an Assistant United States Attorney for 13 years and I specialized in the area of prosecuting child sexual exploitation cases. In that capacity, I prosecuted many predators who had a sexual interest in children. During the course of my work, I saw that the nature of the cases in this area changed dramatically. Initially, these cases involved individuals who tried to obtain child pornography through the mails, usually in a very unsophisticated manner. The activity of the predators has evolved during the 1990's to include cases targeting adults who use the Internet not only to trade child pornography, but to meet children and to engage in actual molestation of the children. With respect to obscenity cases, much has also changed in that area, as well. The adult bookstore has largely been replaced by thousands of websites advertising and selling pornography. Nearly everyone who has received unwanted and offensive spam and e-mails advertising graphic sexual materials understands what I mean. Pornographic websites also offer video tapes, streaming video, and live webcam activity, all of which can be accessed immediately by the computer user. Effectively, this means that the world's worst adult bookstore can now be accessed in anyone's home who has access to a personal computer, and it is not a leap of logic to assume that young people are accessing this material, as well. The work of the Department of Justice to provide a safe America for children now extends well beyond the physical world into the electronic universe of cyberspace. While the Internet has many great educational benefits, there are also dark corners of the Internet where children are being exposed to inappropriate sexual material. Protecting children is the most important reason to vigorously enforce both our child exploitation and obscenity laws. I would like to talk about some of the cases that we have prosecuted in Western Pennsylvania. Several years ago, I prosecuted an Arizona minister who had befriended a 13-year-old boy online. Initially, he began sending this boy child pornography. Eventually, he sent him a Polaroid camera and asked the boy to take a picture of himself and to send that picture to the minister in Arizona. Postal Inspectors organized a search of the minister's house and they found boxes and boxes of child pornography, videotapes, and magazines. In another case just this year, the FBI received information that a Pittsburgh man had been attempting to trade child pornography with an undercover detective in Chicago. A search warrant for child pornography was executed at a residence in Pittsburgh and located at the scene was a 10-year- old girl who had been adopted by this man in Russia for the purpose in engaging in illegal sexual activity with her. This child had been adopted at the age of five and brought to the United States. Images of the child were taken and then placed online by this individual. He recently plead guilty and is facing a sentence of 15 to 20 years in prison. In another case, a defendant was convicted of possessing child pornography in Los Angeles. That defendant agreed to cooperate with law enforcement and he told law enforcement about a man in Pittsburgh who had been engaging in sexual activities with his own 5-year-old daughter and then showing those activities through a video camera to others on the Internet. This individual even sold his daughter's undergarments to individuals in exchange for child pornography. He was convicted and is serving 9 years in prison. Under the PROTECT Act, the activity of this person would have netted a 25-year sentence, but unfortunately, the conduct occurred prior to the enactment of the PROTECT Act. All of these individuals possessed thousands of images of child pornography, revealing their strong interest in sex with children. Unfortunately, these perpetrators don't just stop at looking at pictures. They have actually acted upon their perverse sexual interests. As the extensive nature of the child pornography collections that we have seen reveals, perpetrators are collecting more and more material. They are creating a market and a demand for child pornography, and what this means is the more they collect, the more they want to collect and the more children are going to be victimized in order to make these depictions. And each time that this depiction is shown, the child is revictimized over and over again. Most recently, we prosecuted a man from Virginia who identified himself on the Internet as the ``Master of Teen Slave Girls.'' He engaged in chat conversations with a 13-year- old girl from Pittsburgh, and on New Year's Day 2002, he traveled to Pittsburgh and transported her to his house in Virginia, where he chained her to a room and intended to make her his sex slave. He had an entire room of torture implements that he intended to use on this child. Fortunately, we were able to utilize the provisions of the PATRIOT Act. Specifically, we used the pen register and trap and trace application and national service provisions to locate the child and we were successful in finding her after only about a day and a half. Chairman Hatch. Something you didn't have before the PATRIOT Act. Ms. Buchanan. That is absolutely correct. Chairman Hatch. I get so sick of these people that have no conception of what is in the PATRIOT Act, mostly these journalists who write about it, and yet you have tools now that you should have had years ago but we were stopped by both the far left and far right from giving you but are really making a difference for our families today. I appreciate your bringing that up. Ms. Buchanan. Thank you. Had we not had those tools, we may not have been as successful in locating this child as quickly as possible and the results could have been very different than they were in this case. This particular defendant plead guilty and he will be serving more than 20 years in prison for his crimes. In these cases and in many others, we have found that there is a direct link between adult and child pornography and the offenders who actually molest children. Images now available on the Internet are more graphic, involve younger children being molested, and increase every day. There are few, if any, crimes that are more serious than the rape of a child. United States Attorneys around the country have placed a very high priority on catching and prosecuting these offenders, and we work very closely with the Child Exploitation Section and all forms of Federal and State law enforcement. The importance of cooperation among all levels of law enforcement is certainly recognized by all U.S. Attorneys. In Western Pennsylvania, we have formed a Crimes Against Children task force that brought together not only Federal, State, and local law enforcement, but medical professionals and victims' service agencies so that we could address the full needs of the child victims of these types of crimes, and we have found that that has been a very effective tool for us in maximizing the number of prosecutions that we are able to bring and in making sure that all of the needs of the child victims are met. And before I conclude, Senator, I would like to briefly discuss adult obscenity, because it is important to recognize that adults as well as children can become the victims of pornography. With a CEOS trial attorney, my office recently prosecuted an obscenity case involving Extreme Associates and its owners, Robert Zicari and Janet Romano. Extreme Associates is a California company that has produced some of the most vile, offensive, and degrading material that is available on the Internet. One of the videos that is being charged, called ``Forced Entry,'' is a series of rape scenes and killing of three women. The women are hit, slapped, and spit upon. Another movie involves sexual acts with multiple men, followed by the women being forced to drink almost every form of bodily excrement. Although the third video apparently involves actresses who are over the age of 18, these women are dressed as children younger than 18. In one of the scenes, the woman is wearing Pokemon pajamas and she is being forcibly raped by a magazine salesman. Obscenity by its very nature reduces human beings to sexual objects. Just last week, I received a letter from a woman whose daughter had participated in the production of pornographic films. The mother described how her daughter had become a drug- addicted participant of these obscenity videos. Prior to that, she had been a graduate of a very well-known high school. She had a very promising future, but she got involved in the obscenity industry and this mother, with nowhere else to turn, asked me to do whatever I could to make sure that no other child is victimized the way her daughter was. I thank you for giving us the opportunity to speak to you today about the problems involved with child pornography and obscenity and I welcome your questions. Chairman Hatch. Well, thank you. I want to thank you for the work that you have done. A lot of people don't know what you are talking about when you talk about pen register, trap and trace that we now have given you the authority to use under the PATRIOT Act, and that is being able to get the phone numbers into a phone and out of the phone of terrorists or criminals like this terrorist was against this young girl. You would think that was a given. You would think, no way that law enforcement wouldn't have those tools, but we could never get them through. And I was the author of the 1996 anti-terrorism effective death penalty act when we were trying to get laws like that through at that time and were stopped. This time, we got them through and it is making a real difference and I am just really proud of you and the work that you are doing. [The prepared statement of Ms. Buchanan appears as a submission for the record.] Chairman Hatch. Now, let me just say I am proud of all of you and appreciate the work that each one of you is doing and the people that you work with, the staffs that you have and the organizations that you head. I am sure you are all aware that DOJ's Child Exploitation and Obscenity Section prosecuted only a handful of pure obscenity cases during the 8 years of the Clinton administration. During this same time period, there was a tremendous growth in the availability of pornography on the Internet. Will you please discuss how these challenges affected the Department's prosecution of obscenity cases right up until today. We will start with you, Mr. Malcolm. Mr. Malcolm. Certainly, Mr. Chairman. I think it is safe to say that there was a lack of Federal obscenity enforcement during the last administration, not on child porn issues, but on adult obscene material, and in part-- Chairman Hatch. I am not trying to pick on anybody. I am just citing what really are facts. Mr. Malcolm. Facts are difficult to ignore in this area, and the facts speak for themselves. I think that, coupled with emerging technology, certainly lead to a proliferation of obscene material. I mean, people who are going to be able to get a free pass and engage in illegal activity that is highly profitable are going to do so and do so in spades, and they did. Unfortunately, also during that time period, we lost some very experienced prosecutors and investigators at the Federal level. Chairman Hatch. I know the Department has faced significant personnel changes and challenges in this area, including an almost complete turnover of prosecutors at CEOS. Now that the new prosecutors are getting settled in and trained, should we expect to see an increase in the number of investigations and prosecutions brought by the Department in this area? Mr. Malcolm. I absolutely do. We are coming up with an effective enforcement strategy, and it has taken us a while to get up and running, but now we are pretty much at a full clip and I fully expect-- Chairman Hatch. We expect you are going to full force forward. Mr. Malcolm. Absolutely. Chairman Hatch. Okay. Mr. Flores, let me ask you this. As a member of the COPA Commission, you evaluated the accessibility, cost, and effectiveness of technologies to protect minors from sexually explicit material, harmful to minors material, which is different, on the Internet. Now, in your current position as Administrator of OJJDP, you hosted an Internet safety focus group that brought together experts in the government, private sector, and nonprofit organizations to discuss the increasing number of children and teenagers using the Internet, the proliferation of child pornography and the heightened activity by predators searching for unsupervised conduct with underaged victims. Based on this experience, as well as your prosecutorial experience, what non-prosecutorial safeguards do you recommend to ensure that pornographic distributors cannot target children? Mr. Flores. Mr. Chairman, I think that question calls for two answers that are related. The first is that there are technologies out there, that when used carefully together, provide assistance to parents, to schools, to those locations where children have access to computer technology and the Internet. I don't think it is fair to say any longer that that technology is so nascent, that it is just not very good, it doesn't work, or it is very blunt and coarse in how it addresses these issues. So I think that, clearly, technology represents one of those tools that have to be used. I am glad to see that libraries and schools are now using these filters, they are putting them on their systems in order to provide a measure of protection. But I would say that one of the things that came up at that focus group, and something that is extremely important to me, is the need and recognition that parents are still the missing cog in much of what we need to do to protect children. The Congress and the President have been very focused on the fact that industry has to take responsibility for what it does and what it makes available, whether it is the Internet service provider community or the direct purveyor and producer of the obscene material harmful to minors. We have worked with schools and we have created educational materials and tools to teach kids safety. The National Center for Missing and Exploited Children does that. But one of the missing ingredients has been parents, and it has been a challenge to get parents engaged. And so one of the things that the focus group has said is that if we want to succeed, we have got to find ways to encourage parents to really get involved. Because at the end of the day, the same thing is true that I told parents 15 years ago. If you want to protect your children from sexual abuse and predators, have a good relationship with them. Children who enjoy a solid and sound relationship with their parents have the least to fear and the smallest risk of being exploited, whether it is through this technology or anything else. Chairman Hatch. Let me just ask you, Ms. Buchanan, given your significant prosecutorial experience, will you explain to the Committee some of the unique challenges in prosecuting an obscenity case and how it compares with other, say, financial or violent crimes cases and how has the number and types of obscenity cases in your district been affected by Attorney General John Ashcroft's proclamation that obscenity prosecutions are a priority within the Department? Ms. Buchanan. Every United States Attorney understood at the beginning of our terms that obscenity was a priority of President Bush and of Attorney General Ashcroft. I think that we all had to adjust our priorities in order to deal with the effects of terrorism, because that certainly is everyone's number one priority, and we do have to balance the current priorities of the Department, which include the prevention of terrorism, fighting corporate fraud, drug trafficking, and violent crime, and child exploitation and obscenity. Some of the unique legal challenges I think that we will face in prosecuting these cases, first, members of the jury, I think are going to be very uncertain as to what the community standards are today because we haven't had prosecutions in this area really in the last decade. So much material has been made available to the public and I think that it has desensitized the public. People don't necessarily understand that the fact that certain things have not been prosecuted doesn't mean that they are not illegal. The case that we are now prosecuting is really the first of its type in a decade, and this jury is going to have to decide what the community standard is. However, this particular case, wherever that line may be, it is so far over the line, we don't feel that it should be a difficulty in this case. But I think that finding and defining the community standard probably represents the greatest challenge in prosecuting obscenity cases. Chairman Hatch. Thank you. Now, Mr. Maxwell, just a question or two for you before we finish with this panel. Your written testimony provides that over the last 6 years, the percentage of child exploitation cases investigated by the Postal Inspection Service that involve electronic communications increased from 33 to 70 percent. Now, how has this change in technology affected the way investigations are handled in the Postal Inspection Service? Mr. Maxwell. What we have found, there are a couple of challenges there that we have to face because of that. Sometimes the Internet solicitation and development of the case, which historically in years gone by would be through letter writing and mail, is much faster, number one. Number two, there are a lot of nuances, obviously, in the investigative communications, but then also in setting up the actual--for Postal Inspectors especially, we normally like to have a mailing so we have a violation that we have jurisdiction over. We don't stop short, as I said earlier, we are with a task force and we are working it and the last minute, somebody may have experience with Postal Inspectors and says, I don't want to mail this. Let us meet and we will deliver it. We will still work that case, but that is a challenge we do face. The other issues is that, you know, how widespread will it become. I agree with Mr. Flores as far as the prevention message to parents. There are countless things that they can do, and I think we need to do a better job maybe in getting that out. We did send out a--2 years ago, we had a prevention poster we put out which we had in each post office in the United States. It was designed by a young lady who was an artistic, graphic artist with computers and she wanted it to appeal not only to children, but to parents, and that was sort of the thought behind it. I think it was fairly well received. That was--it took us forever to come up with that concept. We were so busy focusing on investigations, but what Bob had said earlier, I mean, there are ways that parents are knowledgeable, even if their children don't have dialogues with them often about what they personally do online, they can go to the histories and they can check things. So those all do present challenges. Chairman Hatch. The Postal Inspection Service seems to have an advantage, or appears to have an advantage in investigating some obscenity and child pornography cases because the target usually will have purchased the material and have it shipped to their home, which thereby reveals the individual's name and address. Now, typically, how long does it take to conduct an investigation from its inception to arrest? How does it compare with other investigations conducted by other agencies? Mr. Maxwell. Not to give a lawyer answer and say it depends, but the true fact is it depends on the complexity of the investigation. Now, if it is a widespread type of operation, say in the case of Avalanche, where you walk into something that you realize is just tentacles to a lot of other things, it is going to take a lot longer. It depends on the complexity in tracing the assets. If there is going to be forfeiture or possibilities of capturing those assets, that could take a long time, so we could be talking months, and then possibly a year or two of litigation. If it is a quick hit with communications and a purchase, that is a lot easier. So in short, to answer your question would be if it is a major operation, something to a greater extent, it is going to take longer because you have a much more complicated case to put together. If it is just a small-time operator or individual, things go right, it could be just a matter of months and less and then it could be pretty well wrapped up. Chairman Hatch. Thank you. I appreciate all four of you and the work that you have done in the past, the work you are doing now, and the work that I believe you will be able to do even with more expedition in the future because of some of the tools that we have given to you and we intend to give more if you will help us to understand what would help you the most. So in addition to your testimony today, if you will write to us and give us the rest of your ideas or any other ideas that you might have or you come across that might help us to correct prior legislation or improve upon legislation or enact prospective legislation, we would like to have your advice on it. We appreciate each and every one of you. Thank you so much for being here. Mr. Malcolm. Thank you. Mr. Flores. Thank you, sir. Mr. Maxwell. Thank you. Ms. Buchanan. Thank you. Chairman Hatch. We will start with our panel two, which will consist of Mr. Bruce A. Taylor, President and Chief Counsel of the National Law Center for Children and Families in Fairfax, Virginia; Dr. Victor Cline, the Emeritus Professor at the University of Utah; and Mr. Steve Takeshita, the Officer in Charge of the Pornography Unit of the Organized Crime and Vice Division of the Los Angeles Police Department in Los Angeles, California. It is good to see you, Dr. Cline. It has been a while since I have even said hello to you. It is great to have you here. Mr. Taylor, we are going to start with you first, so we will take your statement, then we will take Dr. Cline's, and then we will take Mr. Takeshita's statement. STATEMENT OF BRUCE A. TAYLOR, PRESIDENT AND CHIEF COUNSEL, NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES, FAIRFAX, VIRGINIA Mr. Taylor. Good afternoon, Mr. Chairman. As you know, I worked with you on bills going back to S. 1722 in 1977. I worked with your staff through the 1980's on the dial-up porn legislation, the child porn laws, and I think to this day that you were right in 1996 when you passed the Child Pornography Prevention Act to say computers are going to create images that look like real children, and if we can't find the kids, we may not be able to prove that it is real and we should deal with that kind of material as if it is child pornography. But the Supreme Court last year said that Congress went too far. You can't criminalize computer images that aren't real. So Congress came back with the PROTECT Act, and you did several things, as you have been mentioning. One of the things was you took another tactic. We said, we will tighten up the definition so the Court can't extrapolate that maybe these laws could apply to Hollywood R-rated movies that they were never intended by Congress to apply to. But you also gave law enforcement some new tools, like a new child porn obscenity law that says, if it is obscene and it portrays what appears to be children, we are going to increase the penalty. We are not going to let them get away with images just because we can't find the child. It is still child pornography to those pedophiles who think it is. It is still child pornography to those children who get seduced by it. Real people get hurt by pornography. That is a message that we now focus on with child pornography. We now focus on it with some of the bondage and torture and rape and incest material that is floating around the Internet. But these are relatively new problems that as this Chairman and colleagues like Senator Grassley and others who have been on this Committee for the past 25 years have known have always been the fruits of the obscenity business. I started prosecuting obscenity cases the day the Supreme Court announced the Miller decision in 1973. I did it in a small Bible-belt community called Cleveland, Ohio. I didn't have the luxury of starting off with animals and bondage and child porn. There was no such thing. We prosecuted the adult porn syndicates for the adult pornography product that they brought into the American streams of commerce that Congress said was a felony, Ohio law said was a crime. New York law, California law, Texas law, and all the States have laws against obscenity. It has not been a failure of the American people that has led us to where we are today. It is more a failure of us in law enforcement. Congress in the last eight or 10 years, as the Chairman noted, because there was no enforcement at Justice, and I was there from 1989 through 1994. We were allowed to continue the cases we had started, but there were not going to be any new obscenity cases. They didn't want to do them, so Congress said, well, we are going to pass better laws so that when we have prosecutors who will enforce Federal law, they will have better tools, and we did that. We passed the Communications Decency Act in 1996. In 1997, the Supreme Court said, well, the indecency standard is too vague, so Congress passed COPA in 1998. Your statute that was passed in 1996 was replaced in 2003 with the PROTECT Act. The Communications Decency Act was reenacted in the PROTECT Act and now prohibits website operators and service providers from making obscenity and child porn available to minors. We have the law that makes libraries and schools use filters. Why? Because we are not only trying to protect kids from seeing adult pornography, but we are trying to encourage and give the tools to law enforcement to deal with illegal pornography. It is my opinion as a prosecutor who has probably done more obscenity cases than anybody in the history of the country, in more communities across this country--I have done 100 trials in almost half of the United States--it is my opinion that we can still win because the people still consider obscene all hard- core pornography that shows penetration clearly visible. Our community standards did not sink into the sewer in the last 10 years so that only animals or bondage or children is going to be obscene to our juries. Like Mary Beth Buchanan, the U.S. Attorney from Pittsburgh said, our juries are going to have to be reeducated. They have forgotten that obscenity is a crime because there have not been any cases. But one of the beauties of the Internet and the modern communication age is that a fewer number of cases will have a much greater impact on the crime than in the past. In the 1970's and 1980's, we had to get hundreds of convictions to make a dent in the pornography syndicates who controlled all the adult bookstores, all the theaters, all the video cassettes, all the TV, cable, radio. All of the pornography that was obscene in this country was tightly controlled by a couple of mafia families and a few major distributors. They still run the show. There are more people involved in selling and distributing obscenity, but out of the 260 million webpages that have pornography on the web, there maybe are 150,000 websites. There are probably fewer than a few thousand web servers that host all those pictures. There are probably less than two dozen kingpins in the business who live in California and are controlled with associates in the mafia families in New York who control 90 percent of that. A few well-placed prosecutions by the Federal Government and some of the bigger city district attorneys' offices will be able to have the same deterrent effect on the obscenity business now that it has always had, meaning that when there are Federal prosecutions against child pornography, pedophiles are afraid to get it and they are afraid to molest children. When there are Federal obscenity cases, the pornography syndicates are afraid to distribute material. They are deterred by the law when the law is used, and I think that our juries are still looking to us, meaning the Congress, to have better laws and law enforcement to enforce those laws, because we are going to set the standards that they will allow themselves and their children to learn from. We don't make the laws, we enforce them as prosecutors. But when Congress makes laws or State legislatures pass them and no one enforces them, the people think it must be legal or it wouldn't be there. And that, I think, is the misconception that has been fostered on this generation. It is one that Congress has done what I think you have--you know, all you are able to do to make better laws. It is now up to a new administration, a new Attorney General. We have given him some time. There has been a lack of patience by a lot of groups that it has taken so long to get to where we are where they have started some cases. They had to hire new people. They had to train the people. But some things could still be done to make it better. There needs to be more training. I think there should be more cooperation between State and Federal prosecutors, joint training of local prosecutors, cross-designating local district attorneys and county prosecutors to handle obscenity cases in Federal court. The lack of work power and manpower and resources in the Federal Government can be supported by having local prosecutors handle Federal cases. That is an established part of our system of cooperation and it can be done at very minimal cost. It could also be the province of Congress to give the Postal Inspection Service ten or 20 new investigators to do obscenity and child porn, but obscenity in particular, maybe a couple of FBI agents to be assigned in headquarters to monitor and collect information about the organized crime networks and the pornography syndicates. If obscenity cases are routinely done, the amount of fines and forfeitures far exceeds any budgetary expenditures of the law enforcement community. While I was at the Justice Department, in 5 years, the budget of the Department's CEOS, Child Exploitation and Obscenity Section, was $1 million a year and we took in $25 million in fines and forfeitures. It is not a reason that we enforce the law, but it is a very poor excuse to claim that prosecutors are using valuable resources to enforce these laws. The truth is that when the laws are enforced, the criminals pay for the cost of their own investigations and prosecution. I think that that is what needs to be done and I would just like to make the record here today that all of the hard-core pornography that the syndicate imposes on the American public, whether it is through video cassettes, pay-per-view TV, or Internet, is still prosecutable in every one of our communities, in Utah as well as New York, in Dallas as well as Chicago. We can get convictions in all the big cities like we always have. We need to encourage the Department not to be afraid but to go forward, and their young prosecutors will be more like I was when I started out and the chief prosecutor in Cleveland said to me, go do obscenity cases, and so for the next 3 years, I did 200 of them a year, not knowing that they were difficult and not knowing that people on the juries would have a second thought, because when they were given the chance to vote with their verdicts, they did. They told us what was obscene. We did not tell them. I think that is still the way it is. The American public are entitled to that presumption of their decency is still a community standard and that is why I would like to thank this Chairman and the members of the Committee for making this record that will encourage and, in a sense, require the Attorney General to keep going on the path he has started. Chairman Hatch. Well, thank you, Bruce. We appreciate what you have done throughout all the years. You certainly have been a bulwark in this area and your advice and counsel has always been very helpful to us. [The prepared statement of Mr. Taylor appears as a submission for the record.] Chairman Hatch. Dr. Cline, we will turn to you now to take your testimony. STATEMENT OF VICTOR CLINE, EMERITUS PROFESSOR, UNIVERSITY OF UTAH, SALT LAKE CITY, UTAH Mr. Cline. Thank you, Mr. Chairman. My name is Victor Cline. I am a clinical psychologist and psychotherapist specializing in marital and family counseling and the treatment of sexual compulsions and addictions. Also, I work with the victims of sexual abuse and assault. And additionally, I am a behavioral scientist with approximately 85 publications, many of which are in the area of media and pornography effects. In the last 26 years, I have treated approximately 350 male sexual addicts or compulsives, including many pedophiles and their victims. I also treat rapists, voyeurs, fetishists, those making obscene phone calls, those compulsively promiscuous, et cetera, et cetera. These sexual illnesses all have a common core and dynamic base. They are sexual in nature, highly addictive, compulsive and repetitive, very difficult to treat, where self-control and self-discipline don't stop their occurrence. The Internet represents, in my experience, an area of very significant risk for many children. Where parents have neglected to protect them with filters on their home computers or with frequent access to computers in public libraries, mots of which still lack protecting filters, this makes it exceedingly easy for children to peruse via the Internet explicit depictions of child-adult sex, rape, incest, bestiality, plus view cyber warehouses filled with other depictions of sexual aberrations. I see too many patients of minor age who are stimulated to practice or try out in real life the things they see in this material. Now, the best evidence suggests to date that most or all sexual deviations are learned behaviors, usually through inadvertent or accidental conditioning. There is no convincing evidence to date suggesting the hereditary transmission of any pathological sexual behavior pattern, such as pedophilia, rape, incest, exhibitionism, and so forth. In fact, one British psychologist, Dr. Stanley Rachman, demonstrated in the laboratory using live male subjects how easy it is to repeatedly condition normal males into sexual illness or addiction. Child pornography is particularly pernicious because the child victims, whether they are sexually abused while being photographed or exposed to the erotic pictures as part of their seduction, are relatively powerless due to their young age and innocence and immaturity, as well as not fully understanding the harm potential. Their frequent willingness to trust an older person who appears to be kind and accepting of them makes them easy prey. In my experience as a sexual therapist, any individual who regularly masturbates to pornography is at risk of becoming, in time, a sexual addict, as well as conditioning himself into having a sexual deviancy. In time, the high obtained from masturbating to pornography becomes more important than real- life relationships. It makes no difference if one is an eminent physician, attorney, minister, athlete, corporate executive, college president, unskilled laborer, President of the U.S., or an average 16-year-old boy. All can be self-conditioned into deviancy, and I have seen this for 25 years. I attend all the national meetings where these sorts of things and the research is discussed. The process of masturbatory conditioning is inexorable and does not spontaneously remiss. The course of this illness may be slow and is nearly all hidden from view. It is usually a secret part of a man's life, and like a cancer, it keeps growing and spreading. It rarely ever reverses itself. It is also very difficult to treat and heal. Denial on the part of the addict and refusal to confront the problem are typical and predictable. The presence of child pornography creates the potential of many types of harms in the community, including helping to create sexual predators or pedophiles and later their victims. In the case of pedophiles, the overwhelming majority in my clinical experience use child pornography and/or create it to stimulate and whet their sexual appetites, which they masturbate to, then later use as a model for their own sexual acting out with children. I find that the use of child pornography in time desensitizes the viewer to its pathology, no matter how aberrant or disturbing. It becomes acceptable and preferred. The man always escalates to more deviant material and the acting out continues and escalates despite very painful consequences such as the destruction of the family, loss of spouse, children, job, health, or incarceration after committing criminal acts. Some also use it to seduce children into engaging in sexual acts with themselves. When they introduce it to children, the suggestion is that this is normal behavior and many other young people like themselves also use it and do these things. I find that my pedophiles that I work with often trade, lend, and sell the pictures they make of young people nude and having sex through an informal network. Some of the pornography they accumulate is of females fully developed anatomically, but made to look young and immature by dressing them in children's clothes and arranging their hair, such as with a ponytail, to suggest to the viewer that they are underage minors when, in fact, they may not be. While the producers of this material may claim that no underage children were used in producing this pornographic material, to the viewer, this is irrelevant because they are perceived as minors by the psyche and this erotic arousal may generalize to all potential real child victims. Thank you. Chairman Hatch. Thank you. That is startling testimony, but I know that you have worked long and hard in this particular area and have an international reputation and we are very appreciative for you taking the time to be with us. [The prepared statement of Mr. Cline appears as a submission for the record.] Chairman Hatch. Mr. Takeshita, we will take your testimony now. STATEMENT OF STEVEN TAKESHITA, OFFICER IN CHARGE, PORNOGRAPHY UNIT, ORGANIZED CRIME AND VICE DIVISION, LOS ANGELES POLICE DEPARTMENT, LOS ANGELES, CALIFORNIA Mr. Takeshita. Good afternoon, honorable Chairman and members of the Senate Judiciary Committee. I am Detective Steven Takeshita and I am the Officer in Charge of the Pornography Unit at the Organized Crime and Vice Division of the Los Angeles Police Department. Before I begin, I would like to thank the honorable Committee for your invitation to provide, which I hope will be useful testimony about the pornography industry. I am a 25-year veteran of the department and I have been investigating the distribution of obscenity for the past 18 years. I have developed my expertise over the years by working with more experienced officers and by obtaining first-hand experience as an undercover operative in a joint investigation with the Federal Bureau of Investigation into the nationwide distribution of obscenity. In the 1950s, the Los Angeles Police Department formed the Pornography Unit when it became aware that the pornography industry was developing its base in the Los Angeles area. The duties of the unit were to monitor the distribution of pornographic material and to prosecute the illegal distribution of obscenity as it affected the quality of life to the citizens of Los Angeles. During this time period, the adult industry was taking advantage of the resources available in the Los Angeles area for their productions. The overabundance of unemployed hopeful adult actors and actresses and the support personnel who were willing to participate in the adult industry to meet their basic living expense and financial obligations. Because of the wide variety of scenic locations and the great weather, both the general and adult film industries favored the Los Angeles area. They could film a mountain, desert, or beach scene all in 1 day, an ideal environment for filming. The industry has progressed from the ``T.J. Bibles,'' sexually explicit pocketbooks bought in Tijuana, and eight- millimeter films to the DVD and the Internet. The Internet has been referred to as the ``Wild West'' of the 1990s. This Wild West of the 1990s has progressed to the point where the average distributor on the Internet thinks that they are immune from prosecution because of the Internet. The Internet is just a vehicle for distribution. For example, if I were telephoning a minor to entice the minor for sexual activity, there would be no difference than if I chatted to that minor online for the same sexual activity. The Internet is just a vehicle the illegal activity. This vehicle has posed new investigative methods. No longer do we respond to an advertisement in a local adult periodical to find the distributor in our backyard. Now, our response may be directed to a city across the nation or even a foreign country. Since our investigations deal directly with a person's First Amendment rights, all of our investigative evidence is acquired with either a search warrant or consent search. No longer can we establish agency liaisons only within our county, but now we must need to network with agencies across the nation and sometimes worldwide. These liaisons are critical for our surveillances and search warrants. The Los Angeles area is no longer the base of distribution for 90 percent of the adult product within our Nation as it was in the earlier years. The increased use of the Internet has made the distribution of obscenity a national problem. The extreme adult product distributed nowadays was self-banned by the adult industry at large only 10 years ago. The recent hiatus in Federal prosecution of obscenity has brought forth the courage in the adult industry to produce this extreme sexually explicit product. The adult industry must produce different types of products to encourage the consumer to continue in the purchasing of their product. The tight competition for the consumer dollar has encouraged the major adult industry producers to venture to the edge of the envelope with the distribution of some of the most extreme sexual product. We have laws in place to protect the abuse the women endure during the filming of these extreme sexual videos. We have the laws in place to protect the exposure of this type of product to our children. We have the laws in place to create a better quality of life for our citizens. We need the assistance of the Federal Government to prosecute the violators of the statutes that Congress has enacted to put the welfare of our communities as one of our priorities. Most recently, the Western District of Pennsylvania, Honorable United States Attorney Mary Beth Buchanan, who was here earlier, and her staff, the Child Exploitation and Obscenity Section, CEOS, of the United States Department of Justice, and the United States Postal Inspection Service have investigated and also assisted in our investigations in the distribution of obscenity. These entities have been very supportive and taken the lead into investigating the distribution of obscenity. What we need today is for all law enforcement entities to prosecute aggressively any violator of the distribution of obscenity within their investigative jurisdiction to the maximum. The First Amendment is listed first because our forefathers felt its importance. The adult industry tries to hide behind the First Amendment in the distribution of their product. The Supreme Court has ruled that the First Amendment does not protect obscenity. I would like to thank the honorable Committee members for letting me have this opportunity to testify before you. Thank you. Chairman Hatch. Thank you. [The prepared statement of Mr. Takeshita appears as a submission for the record.] Chairman Hatch. Thanks to each of you. We appreciate having you with us. Let me start with you, Mr. Taylor. As I understand it, when you were at CEOS through the Child Exploitation Unit or Section and Obscenity Section in its early days, from 1989 to 1994, as you are probably aware, CEOS has had an almost complete turnover of its prosecutors in this administration. Can you please talk about some of the challenges that you faced when CEOS was in its inception and any observations as to how DOJ can meet the challenges it currently faces. Mr. Taylor. In some ways, they are similar. One of the differences is that when CEOS was first created in the late 1980's, it tended to try to hire prosecutors who had some experience. So when I was brought in, we had a prosecutor from Oklahoma, Dallas, Buffalo, places where the prosecutors had already done obscenity cases and knew how to do it. We didn't have to learn the business, we just had to start the investigations. It still takes, as you found out today, three, six, 8 months to do an investigation, but we didn't have another lag time of a year or two to learn how to be the prosecutors. The present staff of the CEOS is made up of a lot of bright young lawyers who did have to learn and are still learning the tricks of the trade of this business. The pornography lawyers know this business. They have been doing the same trials, the same arguments, same witnesses, same trial tactics and briefs for 30 years. There are some of us who have seen enough of their lawyers and their trials to know how to pass on to a new group of prosecutors sort of what they are going to see when they go to court, what the defense lawyer is going to say, what his witnesses are going to do. But the good thing about the new prosecutors is that they are somewhat fearless. They do what they are told. You tell them to go to work, they do. They stay up late. They do their homework. Like I said, when I started out, I didn't know I couldn't do 200 obscenity cases a year. I didn't know we couldn't go after all of the people involved and we shouldn't be able to do every kind of material they do, and I think that could be the attitude that will save this CEOS group of lawyers from being discouraged or letting their guard down. I think they will go after the enforcement of the law as we expect Federal prosecutors to do, meaning spend all your time and all your effort doing as good a job as you can and you let the jury make the decision. But we don't decide for the jury that they are not going to hear certain kinds of cases. We let them hear all of them, and I think we are more likely to see a bigger variety of cases out of this group over the next couple years, even though it has had to wait a couple of years because they had to start over and get trained. But I think we should start judging them starting today rather than from where they have come to. Chairman Hatch. You feel pretty confident that this process is really in full swing now and that we are going to really start going after these people with-- Mr. Taylor. I do. I think that the Attorney General has meant it, since we met with him 2 years ago, that he wanted to enforce the law. It has been frustrating to say, well, they had to get a new chief, and they did. They had to get new lawyers, and they did. They had to train the lawyers, and they did. And so we have had to be patient while they had to start, and maybe the reason for the delay is that they hired people who didn't have the experience. That is up to them to decide how to do. It is not a criticism, but it is an explanation. But now that they have had the time, they have got the staff, they know how to do it, I think that they will be able to do a good job and it will make a difference. It is not a losing proposition. There is no history of failure in Federal law enforcement in this area. There is always success among the juries when they are given a chance, and I think they will be given a lot of chances in the next 2 years. Chairman Hatch. Thank you. Dr. Cline, in an article that you published in April of 1999, you indicate that about 94 percent of the 350 males that you treated for sexual addictions over the last 25 years, that pornography was a contributor, facilitator, or direct causal agent in acquiring these sexual illnesses. Moreover, you have stated that these illnesses are particularly difficult to treat, as you said earlier. Do you think the greater proliferation of pornography now available on the Internet, on cable TV, and in hotels, do you think that this greater proliferation has contributed to the number of sexual addicts or hindered the treatment of sexual compulsions? Mr. Cline. I think that the ease in obtaining this material has actually facilitated the amount of pathology that we are seeing. In fact, Patrick Carnes, the world's leading researcher on this area has found that when he surveyed nearly 1,000 sexual addicts, he asked them the question of whether pornography had anything to do with it or not. Something like over 90 percent said, absolutely, the pornography is the thing that contributed ultimately to their criminal and their inappropriate or their sick kind of behavior, which now has become very addictive and repetitive and they can't control it. Chairman Hatch. I have heard cases of very, very outstanding, religious, decent, honorable people who, once exposed to repetitive pornographic visualizations and obscenity, has had that exposure or exposures, have had those exposures just so distort their minds that they have a rough time handling it, many of them. Mr. Cline. Let me take a few-- Chairman Hatch. Have you had that experience? Mr. Cline. Yes. Oh, absolutely, again and again and again. I see corporate executives fired from their jobs because of sexual harassment and because they have gotten into this. They are using the computers that their company owns two or three hours a day, you know, into pornography and the company has a policy that that is not tolerated and they are losing their jobs and all kinds of consequences, especially for the man who is married. His wife reaches a point where she can no longer tolerate it and the marriage is broken up. The husband promises he will quit, but he can't keep his promise. Chairman Hatch. This could happen to anybody, any normal person who gets caught up in pornography? Mr. Cline. Especially males. The way we are wired, we are much more vulnerable than females, and most pornography is very hostile to women and very anti-feminine. There are major gender differences in who it is marketed to. Chairman Hatch. And your testimony has been that with regard to children, it is even more volatile. Mr. Cline. Yes. Chairman Hatch. Or difficult. Mr. Cline. See, there is a problem with the adults who are into it, so it goes far beyond just the child pornography. But if an adult masturbates to child porn and this gets them turned on and excited, then what this does is this creates within them over time an attraction toward children and eventually wanting to act it out and to have some kind of sexual contact with children. So both the adult and the child suffer. Chairman Hatch. Mr. Takeshita, we are happy to have you, as well. Now, you mention in your written testimony that Los Angeles used to be responsible for the production of 90 percent of all pornographic material. The Internet has made distribution centers all over the nation. How much has this change in the Internet affected the portion of your investigations that are local versus multi-jurisdictional? Mr. Takeshita. Our investigations generally have a basis in L.A. one way or the other. The product is either sent to the city or is distributed from the city. The Internet has made it so that the distribution point could be anywhere in the nation. The website owner or the person that owns the website may take our order and ship the product from his home to our jurisdiction. Chairman Hatch. What sort of cooperation do you expect or do you receive from other law enforcement agencies? Mr. Takeshita. The difficulty in our investigations is we have to show that the person we are going to prosecute, the owner of the business, has direct knowledge that his company is distributing sexually explicit product. That is one of the requirements for our prosecution. With the cooperation of outside agencies, we would be able to have them do the fundamental surveillances, getting down as the location where the business is at, where his residence is at, so that when we go over and do our surveillances, we are not needed to be there for maybe a month to six weeks to establish a pattern. We can utilize the outside agency as our foothold into the investigation. Chairman Hatch. Have you faced any challenges with an investigation you have worked on in California but then find it was prosecuted in another jurisdiction? Mr. Takeshita. Usually, as you state, the investigation can be prosecuted either where the person is at or in California. Finding that type of conflict really doesn't occur. We usually have an open conversation with the investigative agency in the other State and that is all settled before we ask them to assist us in our investigation. Chairman Hatch. That is great. I will tell you, the testimony of you three has been very beneficial to us here today. Again, I will challenge you to think in terms of how you might be able to help this Committee to come up with the changes in the law or improvement in the laws that currently exist that might help us to do a better job in this particular area. We hold these hearings to be able to try and come up with new and better ideas, and also to inform the public of the insidious nature of this type of activity. So please feel free to contact us and let us know how we can do a better job here in the United States Senate. With that, this has been a very interesting hearing and one that we hope to act upon in the immediate future and we can use your help on it. So with that, we will recess until further notice. Thank you. 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