Amendments
2008—Subsecs. (a), (b). Pub. L. 110–401 inserted “or for the purpose of transmitting a live visual depiction of such conduct” after “for the purpose of producing any visual depiction of such conduct” and “or transmitted” after “will be transported”, after “was produced”, and after “has actually been transported”.
Pub. L. 110–358, § 103(a)(1)(A), (B), (b), inserted “using any means or facility of interstate or foreign commerce or” after “be transported” and after “been transported” and substituted “in or affecting interstate” for “in interstate” wherever appearing.
Subsec. (c)(2). Pub. L. 110–358, § 103(a)(1)(C), substituted “using any means or facility of interstate or foreign commerce” for “computer” in subpars. (A) and (B).
Subsec. (d)(2)(A). Pub. L. 110–358, § 103(a)(1)(A), (b), inserted “using any means or facility of interstate or foreign commerce or” after “be transported” and substituted “in or affecting interstate” for “in interstate”.
Subsec. (d)(2)(B). Pub. L. 110–358, § 103(a)(1)(D), (b), inserted “using any means or facility of interstate or foreign commerce or” after “is transported” and substituted “in or affecting interstate” for “in interstate”.
2006—Subsec. (e). Pub. L. 109–248 inserted “section 1591,” after “one prior conviction under this chapter,” and substituted “aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography” for “the sexual exploitation of children” and “not less than 30 years or for life” for “any term of years or for life”.
2003—Subsecs. (a), (b). Pub. L. 108–21, § 506(1), substituted “subsection (e)” for “subsection (d)”.
Subsec. (c). Pub. L. 108–21, § 506(3), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (c)(1). Pub. L. 108–21, § 506(1), substituted “subsection (e)” for “subsection (d)” in concluding provisions.
Subsec. (d). Pub. L. 108–21, § 506(2), redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).
Pub. L. 108–21, § 103(a)(1)(A), (b)(1)(A), substituted “and imprisoned not less than 15” for “or imprisoned not less than 10”, “30 years” for “20 years”, “25 years” for “15 years”, “more than 50 years” for “more than 30 years”, and “35 years nor more than life” for “30 years nor more than life”, and struck out “and both,” before “but if such person has one”.
Subsec. (e). Pub. L. 108–21, § 507, inserted “chapter 71,” before “chapter 109A,” in two places and “or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice),” before “or under the laws” in two places.
Pub. L. 108–21, § 506(2), redesignated subsec. (d) as (e).
1998—Subsec. (a). Pub. L. 105–314, § 201(a), inserted “if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer,” before “or if”.
Subsec. (b). Pub. L. 105–314, § 201(b), inserted “, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer,” before “or if”.
Subsec. (d). Pub. L. 105–314, § 201(c), substituted “, chapter 109A, or chapter 117” for “or chapter 109A” in two places.
1996—Subsec. (d). Pub. L. 104–208 amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title, imprisoned not more than 10 years, or both, but, if such individual has a prior conviction under this chapter or chapter 109A, such individual shall be fined under this title, imprisoned not less than five years nor more than 15 years, or both. Any organization which violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life.”
1994—Pub. L. 103–322, § 330016(1)(S)–(U), which directed the amendment of this section by substituting “under this title” for “not more than $100,000”, “not more than $200,000”, and “not more than $250,000”, could not be executed because those phrases did not appear in text subsequent to amendment of subsec. (d) by Pub. L. 103–322, § 160001(b)(2). See below.
Subsec. (d). Pub. L. 103–322, § 160001(e), inserted “, or attempts or conspires to violate,” after “violates” in two places.
Pub. L. 103–322, § 160001(c), substituted “conviction under this chapter or chapter 109A” for “conviction under this section”.
Pub. L. 103–322, § 160001(b)(2)(C), substituted “fined under this title” for “fined not more than $250,000” in penultimate sentence.
Pub. L. 103–322, § 160001(b)(2)(B), substituted “fined under this title,” for “fined not more than $200,000, or” before “imprisoned not less than five years”.
Pub. L. 103–322, § 160001(b)(2)(A), substituted “fined under this title,” for “fined not more than $100,000, or” before “imprisoned not more than 10 years”.
Pub. L. 103–322, § 60011, inserted at end “Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for any term of years or for life.”
1990—Subsec. (a). Pub. L. 101–647 substituted “person to engage in,” for “person to engage in,,”.
1988—Subsec. (c)(2)(A), (B). Pub. L. 100–690 inserted “by any means including by computer” after “commerce”.
1986—Subsec. (a). Pub. L. 99–628, §§ 2(1), (3), inserted “, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in,” after “assist any other person to engage in,” and substituted “subsection (d)” for “subsection (c)”.
Subsec. (b). Pub. L. 99–628, § 2(2), substituted “subsection (d)” for “subsection (c)”.
Subsecs. (c), (d). Pub. L. 99–628, § 2(3), (4), added subsec. (c) and redesignated former subsec. (c) as (d).
Pub. L. 99–500 and Pub. L. 99–591 substituted “five years” for “two years” in subsec. (c).
1984—Subsecs. (a), (b). Pub. L. 98–292, § 3(1), (2), substituted “visual depiction” for “visual or print medium” in three places and substituted “of” for “depicting” before “such conduct”.
Subsec. (c). Pub. L. 98–292, § 3(3)–(6), substituted “individual” for “person” in three places, “$100,000” for “$10,000”, and “$200,000” for “$15,000”, and inserted “Any organization which violates this section shall be fined not more than $250,000.”
Congressional Findings
Pub. L. 110–358, title I, § 102, Oct. 8, 2008, 122 Stat. 4001, provided that:
“Congress finds the following:
“(1)
Child pornography is estimated to be a multibillion dollar industry of global proportions, facilitated by the growth of the
Internet.
“(2)
Data has shown that 83 percent of
child pornography possessors had images of children younger than 12 years old, 39 percent had images of children younger than 6 years old, and 19 percent had images of children younger than 3 years old.
“(4)
Child pornography is readily available through virtually every
Internet technology, including Web sites, email, instant messaging,
Internet Relay Chat, newsgroups, bulletin boards, and peer-to-peer.
“(5)
The technological ease, lack of expense, and anonymity in obtaining and distributing
child pornography over the
Internet has resulted in an explosion in the multijurisdictional distribution of
child pornography.
“(6)
The
Internet is well recognized as a method of distributing goods and services across
State lines.
Pub. L. 109–248, title V, § 501, July 27, 2006, 120 Stat. 623, provided that:
“Congress makes the following findings:
“(1) The effect of the intrastate production, transportation, distribution, receipt, advertising, and possession of child pornography on the interstate market in child pornography:
“(A)
The illegal production, transportation, distribution, receipt, advertising and possession of
child pornography, as defined in
section 2256(8) of title 18, United
States Code, as well as the transfer of custody of children for the production of
child pornography, is harmful to the physiological, emotional, and mental health of the children depicted in
child pornography and has a substantial and detrimental effect on society as a whole.
“(B)
A substantial interstate market in
child pornography exists, including not only a multimillion dollar industry, but also a nationwide network of individuals openly advertising their desire to exploit children and to traffic in
child pornography. Many of these individuals distribute
child pornography with the expectation of receiving other
child pornography in return.
“(C)
The interstate market in
child pornography is carried on to a substantial extent through the mails and other instrumentalities of interstate and foreign commerce, such as the
Internet. The advent of the
Internet has greatly increased the ease of transporting, distributing, receiving, and advertising
child pornography in interstate commerce. The advent of digital cameras and digital video cameras, as well as videotape cameras, has greatly increased the ease of
producing child pornography. The advent of inexpensive
computer equipment with the capacity to store large numbers of digital images of
child pornography has greatly increased the ease of possessing
child pornography. Taken together, these technological advances have had the unfortunate result of greatly increasing the interstate market in
child pornography.
“(D) Intrastate incidents of production, transportation, distribution, receipt, advertising, and possession of child pornography, as well as the transfer of custody of children for the production of child pornography, have a substantial and direct effect upon interstate commerce because:
“(i)
Some persons engaged in the production, transportation, distribution, receipt, advertising, and possession of
child pornography conduct such activities entirely within the boundaries of one
state. These persons are unlikely to be content with the amount of
child pornography they produce, transport, distribute, receive, advertise, or possess. These persons are therefore likely to enter the interstate market in
child pornography in search of additional
child pornography, thereby stimulating demand in the interstate market in
child pornography.
“(ii)
When the persons described in subparagraph (D)(i) enter the interstate market in search of additional
child pornography, they are likely to distribute the
child pornography they already produce, transport, distribute, receive, advertise, or possess to persons who will distribute additional
child pornography to them, thereby stimulating supply in the interstate market in
child pornography.
“(E)
Prohibiting the intrastate production, transportation, distribution, receipt, advertising, and possession of
child pornography, as well as the intrastate transfer of custody of children for the production of
child pornography, will cause some persons engaged in such intrastate activities to cease all such activities, thereby reducing both supply and demand in the interstate market for
child pornography.
“(F)
Federal control of the intrastate incidents of the production, transportation, distribution, receipt, advertising, and possession of
child pornography, as well as the intrastate transfer of children for the production of
child pornography, is essential to the effective control of the interstate market in
child pornography.
“(2) The importance of protecting children from repeat exploitation in child pornography:
“(C)
The government has a compelling
State interest in protecting children from those who sexually exploit them, and this interest extends to stamping out the vice of
child pornography at all levels in the distribution chain.
“(D)
Every instance of viewing images of
child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.
“(F)
It is imperative to prohibit the reproduction of
child pornography in criminal cases so as to avoid repeated violation and abuse of victims, so long as the government makes reasonable accommodations for the inspection, viewing, and examination of such material for the purposes of mounting a criminal defense.”
Pub. L. 108–21, title V, § 501, Apr. 30, 2003, 117 Stat. 676, provided that:
“Congress finds the following:
“(2)
The Government has a compelling
state interest in protecting children from those who sexually exploit them, including both child molesters and child pornographers. ‘The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance,’ New York v. Ferber,
458 U.S. 747,
757 (1982), and this interest extends to stamping out the vice of
child pornography at all levels in the distribution chain. Osborne v. Ohio,
495 U.S. 103,
110 (1990).
“(3)
The Government thus has a compelling interest in ensuring that the criminal prohibitions against
child pornography remain enforceable and effective. ‘The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.’ Ferber,
458 U.S. at 760.
“(4) In 1982, when the Supreme Court decided Ferber, the technology did not exist to—
“(B)
use parts of images of real children to create a composite image that is unidentifiable as a particular child and in a way that prevents even an expert from concluding that parts of images of real children were used; or
“(C)
disguise pictures of real children being abused by making the image look
computer-generated.
“(5)
Evidence submitted to the
Congress, including from the National Center for Missing and Exploited Children, demonstrates that technology already exists to disguise depictions of real children to make them unidentifiable and to make depictions of real children appear
computer-generated. The technology will soon exist, if it does not already, to
computer generate realistic images of children.
“(7)
There is no substantial evidence that any of the
child pornography images being trafficked today were made other than by the abuse of real children. Nevertheless, technological advances since Ferber have led many criminal defendants to suggest that the images of
child pornography they possess are not those of real children, insisting that the government prove beyond a reasonable doubt that the images are not
computer-generated. Such challenges increased significantly after the decision in Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002).
“(8)
Child pornography circulating on the
Internet has, by definition, been digitally uploaded or scanned into
computers and has been transferred over the
Internet, often in different file formats, from trafficker to trafficker. An image seized from a collector of
child pornography is rarely a first-generation product, and the retransmission of images can alter the image so as to make it difficult for even an expert conclusively to opine that a particular image depicts a real child. If the original image has been scanned from a paper version into a digital format, this task can be even harder since proper forensic assessment may depend on the quality of the image scanned and the tools used to scan it.
“(9)
The impact of the Free Speech Coalition decision on the Government’s ability to prosecute
child pornography offenders is already evident. The Ninth Circuit has seen a significant adverse effect on prosecutions since the 1999 Ninth Circuit Court of Appeals decision in Free Speech Coalition. After that decision, prosecutions generally have been brought in the Ninth Circuit only in the most clear-cut cases in which the government can specifically identify the child in the depiction or otherwise identify the origin of the image. This is a fraction of meritorious
child pornography cases. The National Center for Missing and Exploited Children testified that, in light of the Supreme Court’s affirmation of the Ninth Circuit decision, prosecutors in various parts of the country have expressed concern about the continued viability of previously indicted cases as well as declined potentially meritorious prosecutions.
“(10)
Since the Supreme Court’s decision in Free Speech Coalition, defendants in
child pornography cases have almost universally raised the contention that the images in question could be virtual, thereby requiring the government, in nearly every
child pornography prosecution, to find proof that the child is real. Some of these defense efforts have already been successful. In addition, the number of prosecutions being brought has been significantly and adversely affected as the resources required to be dedicated to each
child pornography case now are significantly higher than ever before.
“(11)
Leading experts agree that, to the extent that the technology exists to
computer generate realistic images of
child pornography, the cost in terms of time, money, and expertise is—and for the foreseeable future will remain—prohibitively expensive. As a result, for the foreseeable future, it will be more cost-effective to produce
child pornography using real children. It will not, however, be difficult or expensive to use readily available technology to disguise those depictions of real children to make them unidentifiable or to make them appear
computer-generated.
“(12)
Child pornography results from the abuse of real children by
sex offenders; the production of
child pornography is a byproduct of, and not the primary reason for, the sexual abuse of children. There is no evidence that the future development of easy and inexpensive means of
computer generating realistic images of children would stop or even reduce the sexual abuse of real children or the practice of visually recording that abuse.
“(13)
In the absence of congressional action, the difficulties in enforcing the
child pornography laws will continue to grow increasingly worse. The mere prospect that the technology exists to create composite or
computer-generated depictions that are
indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution; for it threatens to create a reasonable doubt in every case of
computer images even when a real child was abused. This threatens to render
child pornography laws that protect real children unenforceable. Moreover, imposing an additional requirement that the Government prove beyond a reasonable doubt that the defendant knew that the image was in fact a real child—as some courts have done—threatens to result in the de facto legalization of the possession, receipt, and distribution of
child pornography for all except the original producers of the material.
“(14)
To avoid this grave threat to the Government’s unquestioned compelling interest in effective enforcement of the
child pornography laws that protect real children, a statute must be adopted that prohibits a narrowly-defined subcategory of images.
“(15)
The Supreme Court’s 1982 Ferber v. New York decision holding that
child pornography was not protected drove
child pornography off the shelves of adult bookstores. Congressional action is necessary now to ensure that open and notorious trafficking in such materials does not reappear, and even increase, on the
Internet.”
Pub. L. 104–208, div. A, title I, § 101(a) [title I, § 121[1]], Sept. 30, 1996, 110 Stat. 3009–26, provided that:
“Congress finds that—
“(1)
the use of children in the production of sexually explicit material, including photographs, films, videos,
computer images, and other
visual depictions, is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved;
“(2)
where children are used in its production,
child pornography permanently records the victim’s abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years;
“(3)
child pornography is often used as part of a method of seducing other children into sexual activity; a child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children ‘having fun’ participating in such activity;
“(4)
child pornography is often used by pedophiles and child sexual abusers to stimulate and whet their own sexual appetites, and as a model for sexual acting out with children; such use of
child pornography can desensitize the viewer to the pathology of sexual abuse or exploitation of children, so that it can become acceptable to and even preferred by the viewer;
“(5)
new photographic and
computer imagining [sic] technologies make it possible to produce by electronic, mechanical, or other means,
visual depictions of what appear to be children engaging in sexually explicit conduct that are virtually
indistinguishable to the unsuspecting viewer from unretouched photographic images of actual children engaging in sexually explicit conduct;
“(6) computers and computer imaging technology can be used to—
“(A)
alter sexually explicit photographs, films, and videos in such a way as to make it virtually impossible for unsuspecting viewers to identify individuals, or to determine if the offending material was produced using children;
“(B)
produce
visual depictions of child sexual activity designed to satisfy the preferences of individual child molesters, pedophiles, and pornography collectors; and
“(C)
alter innocent pictures of children to create
visual depictions of those children engaging in sexual conduct;
“(7)
the creation or distribution of
child pornography which includes an image of a recognizable
minor invades the child’s privacy and reputational interests, since images that are created showing a child’s face or other identifiable feature on a body engaging in sexually explicit conduct can haunt the
minor for years to come;
“(8)
the effect of
visual depictions of child sexual activity on a child molester or pedophile using that material to stimulate or whet his own sexual appetites, or on a child where the material is being used as a means of seducing or breaking down the child’s inhibitions to sexual abuse or exploitation, is the same whether the
child pornography consists of photographic depictions of actual children or
visual depictions produced wholly or in part by electronic, mechanical, or other means, including by
computer, which are virtually
indistinguishable to the unsuspecting viewer from photographic images of actual children;
“(9)
the danger to children who are seduced and molested with the aid of child
sex pictures is just as great when the child pornographer or child molester uses
visual depictions of child sexual activity produced wholly or in part by electronic, mechanical, or other means, including by
computer, as when the material consists of unretouched photographic images of actual children engaging in sexually explicit conduct;
“(10)
(A)
the existence of and traffic in child pornographic images creates the potential for many types of harm in the community and presents a clear and present danger to all children; and
“(B)
it inflames the desires of child molesters, pedophiles, and child pornographers who prey on children, thereby increasing the creation and distribution of
child pornography and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these materials;
“(11)
(A)
the sexualization and eroticization of
minors through any form of child pornographic images has a deleterious effect on all children by encouraging a societal perception of children as sexual objects and leading to further sexual abuse and exploitation of them; and
“(B)
this sexualization of
minors creates an unwholesome environment which affects the psychological, mental and emotional development of children and undermines the efforts of parents and families to encourage the sound mental, moral and emotional development of children;
“(12)
prohibiting the possession and viewing of
child pornography will encourage the possessors of such material to rid themselves of or destroy the material, thereby helping to protect the victims of
child pornography and to eliminate the market for the sexual exploitative use of children; and
“(13)
the elimination of
child pornography and the protection of children from sexual exploitation provide a compelling governmental interest for prohibiting the production, distribution, possession, sale, or viewing of
visual depictions of children engaging in sexually explicit conduct, including both photographic images of actual children engaging in such conduct and depictions produced by
computer or other means which are virtually
indistinguishable to the unsuspecting viewer from photographic images of actual children engaging in such conduct.”
Pub. L. 99–500, § 101(b) [title VII, § 702], Oct. 18, 1986, 100 Stat. 1783–39, 1783–74, and Pub. L. 99–591, § 101(b) [title VII, § 702], Oct. 30, 1986, 100 Stat. 3341–39, 3341–74 provided that:
“The Congress finds that—
“(1)
child exploitation has become a multi-million dollar industry, infiltrated and operated by elements of organized crime, and by a nationwide network of individuals openly advertising their desire to exploit children;
“(2)
Congress has recognized the physiological, psychological, and emotional harm caused by the production, distribution, and display of
child pornography by strengthening laws prescribing such activity;
“(3)
the Federal Government lacks sufficient enforcement tools to combat concerted efforts to exploit children prescribed by Federal law, and exploitation victims lack effective remedies under Federal law; and
“(4)
current rules of evidence, criminal procedure, and civil procedure and other courtroom and investigative procedures inhibit the participation of child victims as witnesses and damage their credibility when they do testify, impairing the prosecution of child exploitation offenses.”
Pub. L. 98–292, § 2, May 21, 1984, 98 Stat. 204, provided that:
“The Congress finds that—
“(1)
child pornography has developed into a highly organized, multi-million-dollar industry which operates on a nationwide scale;
“(2)
thousands of children including large numbers of runaway and homeless youth are exploited in the production and distribution of pornographic materials; and
“(3)
the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the individual child and to society.”
