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The PROTECT Act of 2003 (, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing
child abuse Child abuse (also called child endangerment or child maltreatment) is physical, sexual, and/or psychological maltreatment or neglect of a child or children, especially by a parent or a caregiver. Child abuse may include any act or failure to ...
as well as investigating and prosecuting violent crimes against children. "PROTECT" is a
contrived acronym An acronym is a word or name formed from the initial components of a longer name or phrase. Acronyms are usually formed from the initial letters of words, as in ''NATO'' (''North Atlantic Treaty Organization''), but sometimes use syllables, as ...
which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today". The PROTECT Act incorporates the Truth in Domain Names Act (TDNA) of 2003 (originally two separate Bills, submitted by Senator Orrin Hatch and Congressman Mike Pence), codified at 18 U.S.C. § 2252(B)(b).


Overview

The law has the following effects: *Provides for mandatory life imprisonment of sex offenders convicted of sex offenses against a minor if the offender has had a prior conviction of abuse against a minor, with some exceptions. *Establishes a program to obtain criminal history background checks for volunteer organizations. *Authorizes wiretapping and monitoring of other communications in all cases related to child abuse or
kidnapping In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/ asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the ...
. *Eliminates
statutes of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In mo ...
for child abduction or child abuse. *Bars pretrial release of persons charged with specified offenses against or involving children. *Assigns a national
AMBER Alert An Amber Alert (alternatively styled AMBER alert) or a child abduction emergency alert ( SAME code: CAE) is a message distributed by a child abduction alert system to ask the public for help in finding abducted children. The system originated i ...
Coordinator. *Implemented Suzanne's Law. Named after Suzanne Lyall, a 19-year-old college student at the
University at Albany The State University of New York at Albany, commonly referred to as the University at Albany, UAlbany or SUNY Albany, is a public research university with campuses in Albany, Rensselaer, and Guilderland, New York. Founded in 1844, it is on ...
who disappeared in 1998, the law eliminates waiting periods before law enforcement agencies will investigate reports of missing adults ages 18–21. These reports are also filed with the NCIC. *Prohibits computer-generated
child pornography Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a ch ...
when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct"; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code). *Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the Miller test of being obscene, OR depicting minors who are engaged in sex acts that are deemed obscene under an alternate test that removes the "community standards" prong of the Miller test. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors). *Minimum sentence of 5 years for possession, 10 years for distribution. *Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad. For the purposes of this law, illicit sexual conduct is defined as commercial sex with or sexual abuse of anyone under 18, or any sex with anyone under 16.United States Code
Title 18 Chapter 117
, 18 USC Sec. 2423, Subsections (c) and (f)
United States Code
Title 18 Chapter 109A
, 18 USC Sec. 2243, Subsection (a)

/ref> Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14-year-old if such sex was legal in the foreign territory. *Incorporated other proposed legislation existing at the time as: **the Code Adam Act of 2003, (Title III, Subtitle D) **the Truth in Domain Names proposed language ( Title V, Subtitle B) **the Secure Authentication Feature and Enhanced Identification Defense Act of 2003, also cited as the SAFE ID Act, ( Title VI, Section 607.) **the Illicit Drug Anti-Proliferation Act of 2003 ( Title VI, Section 608.) The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '
2257 Regulations The Child Protection and Obscenity Enforcement Act of 1988, title VII, subtitle N of the Anti-Drug Abuse Act of 1988, , , is part of a United States Act of Congress which places stringent record-keeping requirements on the producers of actual, sexu ...
'. The Free Speech Coalition has filed a lawsuit against the
United States Department of Justice The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United State ...
claiming the 2257 Regulations are
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. The PROTECT Act includes prohibitions against obscene illustrations depicting child pornography, including computer-generated illustrations, also known as ''virtual child pornography''. Previous provisions outlawing virtual child pornography in the
Child Pornography Prevention Act of 1996 The Child Pornography Prevention Act of 1996 (CPPA) was a United States federal law to restrict child pornography on the internet, including virtual child pornography. Before 1996, Congress defined child pornography with reference to the ''Ferber' ...
had been ruled unconstitutional by the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in its 2002 decision, ''Ashcroft v. Free Speech Coalition''. The PROTECT ACT attached an obscenity requirement under the Miller test or the variant test noted above to overcome this limitation. The PROTECT Act allows sex offenders to be sentenced to a lifetime term of
federal supervised release United States federal probation and supervised release are imposed at sentencing. The difference between probation and supervised release is that the former is imposed as a substitute for imprisonment, or in addition to home detention, while the ...
. Although targeted most directly at sex offenders, it the PROTECT Act affects all federal supervised releasees. The PROTECT Act removed the "aggregation requirement" of and , which had limited the net amount of imprisonment that a sentencing court could impose for supervised release violations. The act was signed into law by
President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...
George W. Bush George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...
on April 30, 2003.


Application of the Act


Appellate Court

On April 6, 2006, in '' United States v. Williams'', the
Eleventh Circuit Court of Appeals The United States Court of Appeals for the Eleventh Circuit (in case citations, 11th Cir.) is a federal court with appellate jurisdiction over the following U.S. district courts: * Middle District of Alabama * Northern District of Alabama * ...
ruled that one component of the PROTECT Act, the "pandering provision" codified at (a)(3)(B) of the United States Code, violated the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
. The "pandering provision" conferred criminal liability on anyone who knowingly
advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.
The ''Williams'' court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Based on this determination, the court held § 2252A(a)(3)(B) to be unconstitutionally overbroad. The Eleventh Circuit further stated that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.


Supreme Court Cases

The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.


Convictions

The first conviction of a person found to have violated the sections of the act relating to virtual child pornography was Dwight Whorley of Virginia, who used computers at the Virginia Employment Commission to download "Japanese
anime is hand-drawn and computer-generated animation originating from Japan. Outside of Japan and in English, ''anime'' refers specifically to animation produced in Japan. However, in Japan and in Japanese, (a term derived from a shortening o ...
style cartoons of children engaged in explicit sexual conduct with adults" alleged to depict "children engaged in explicit sexual conduct with adults". He was charged with 19 counts of "knowingly receiving" child pornography for printing out two cartoons and viewing others.
Comic Book Legal Defense Fund The Comic Book Legal Defense Fund (CBLDF) is an American non-profit organization formed in 1986 to protect the First Amendment rights of comics creators, publishers, and retailers covering legal expenses. Charles Brownstein served as the organiz ...

"Criminal Prosecutions of Manga"
(accessed 7 January 2017)
His conviction was upheld in a 2–1 panel decision of the
Fourth Circuit Court of Appeals The United States Court of Appeals for the Fourth Circuit (in case citations, 4th Cir.) is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts: * District of Maryland ...
in December 2008. This decision was consistent with the U.S. Supreme Court ruling in '' Ashcroft v. Free Speech Coalition'' in which the Supreme Court held that virtual child pornography was protected free speech, provided that the virtual depictions are not obscene. Obscenity, including obscene depictions of children, either virtual or real, is unprotected speech. (Whorley was also previously convicted of offenses in connection with pornographic depictions of real children.) Also in 2008, Christopher Handley, a "prolific collector" of manga, pleaded guilty to charges related to the PROTECT Act, in exchange for a six-month plea deal, five years of probation, and forfeiture of his collection of manga and anime that had been seized by police. He was facing a maximum sentence of up to twenty years. While not convicted by a jury, he was the first person charged under the PROTECT Act for the lone act of possessing art deemed obscene, in the form of seven manga graphic novels ordered from Japan. In the case '' United States v. Handley'', district court Judge James E. Gritzner ruled that two parts of the PROTECT Act that criminalized certain depictions without having to go through the Miller test were overbroad and thus unconstitutional. Handley still faces an obscenity charge. Both prosecutors and defense attorneys noted that the plea deal was due to the high risk of a constitutional challenge, and the federal government agreed that Handley would not be required to register as a sex offender. A later ruling in United States v. Dean challenged the ''Handley'' overbreadth ruling because the ''Handley'' ruling did not prove that the sections had "substantial overbreadth".


Criticism

According to Adler, Delohery, and Charles Brownstein, "the current law raises concerns for creators, publishers, and collectors of various forms of entertainment (including, but not limited to, comics/manga, video games, and fine art)." Bell argues that the PROTECT Act should be reexamined by Congress because it infringes on the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
's right to free expression.Rosalind E. Bell
"Reconciling the PROTECT Act with the First Amendment"
, ''NYU Law Review, Vol. 87'', Dec. 2012, p. 1878-1917. (accessed 7 Jan. 2016)


See also

* Laws regarding child pornography *
Legal status of drawn pornography depicting minors Legal frameworks around fictional pornography depicting minors vary depending on country and nature of the material involved. Laws against production, distribution and consumption of child pornography generally separate images into three catego ...


References

https://www.rcfp.org/journals/the-news-media-and-the-law-winter-2000/acts-prohibition-simulated/


Further reading

* *
Archive
* Fraley, Amy.
Child Sex Tourism Legislation Under the PROTECT Act: Does It Really Protect?

Archive
. '' St. John's Law Review''. Spring 2005, Issue 2, Volume 79, Number 2, Article 7. Posted in February 2012. p. 445-484.


External links


Text of the Act
at GovTrack
Text of the Act
at
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Text of 11th Circuit decision in United States v. Williams

Legislative history
at GovTrack {{Authority control Child pornography law Sex laws United States federal criminal legislation Acts of the 108th United States Congress