PROTECT Act of 2003 - Overview

Overview

The law has the following effects:

• Provides for mandatory life imprisonment of sex offenses against a minor if the offender has had a prior conviction of abuse against a minor, with some exceptions.
• Establishes a program to obtain criminal history background checks for volunteer organizations.
• Authorizes wiretapping and monitoring of other communications in all cases related to child abuse or kidnapping.
• Eliminates statutes of limitations for child abduction or child abuse.
• Bars pretrial release of persons charged with specified offenses against or involving children.
• Assigns a national AMBER Alert Coordinator.
• Implemented Suzanne's Law. Named after Suzanne Lyall, a missing college student of the University of New York at Albany, the law eliminates waiting periods before law enforcement agencies will investigate reports of missing persons ages 18–21. These reports are also filed with the NCIC.
• Prohibits computer-generated child pornography 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 are engaged in sex acts that are deemed to meet the same obscene condition. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors).
• Maximum sentence of 5 years for possession, 10 years for distribution.
• Authorizes fines and/or imprisonment for up to 30 years for U.S. citizens or residents who engage in illicit sexual conduct abroad, with or without the intent of engaging in such sexual misconduct.
• Incorporated other proposed legislation existing at the time as:
  • the Code Adam Act of 2003, (Title III, Subtitle D)
  • the Truth in Domain Names proposed language (Title V, Subtitle B)
  • the Secure Authentication Feature and Enhanced Identification Defense Act of 2003, also cited as the SAFE ID Act, (Title VI, Section 607.)
  • the Illicit Drug Anti-Proliferation Act of 2003 (Title VI, Section 608.)

For the purposes of this law, illicit sexual conduct includes commercial sex with anyone under 18, and non-commercial sex with persons under 16 when there is at least a four-year age difference or the person is under 12 years of age. Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.

The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition has filed a lawsuit against the United States Department of Justice claiming the 2257 Regulations are unconstitutional.

The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography. Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996 had been ruled unconstitutional by the U.S. Supreme Court in 2002. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test, which was not an element of the 1996 law.

The act was signed into law by President George W. Bush on April 30, 2003.

On April 6, 2006, in United States v. Williams, the Eleventh Circuit Court of Appeals ruled that one component of the PROTECT ACT, the "pandering provision" codified at 18 U.S.C. § 2252A(a)(3)(B) of the United States Code, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.

The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.

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

The first conviction of a person found to have violated the sections of the act relating to virtual child pornography, Dwight Whorley of Virginia, was upheld in a 2-1 panel decision of the Fourth Circuit Court of Appeals in December 2008. This was in apparent contradiction to a previous U.S. Supreme Court ruling that stated virtual child pornography was protected free speech.