IS NEEDED TO ESTABLISH MORE EFFECTIVE PENALTIES. H.R. 4257 WOULD REPLACE THESE STATUTES WITH NEW LAW OF DUBIOUS CONSTITUTIONALITY WHICH WOULD PROHIBIT THE MAILING OF SEXUALLY ORIENTED ADVERTISEMENTS TO ANYONE WHO HAS NOT REQUESTED THEM. AS I STATED, WE BELIEVE THAT TREATMAN AND YOUNGS DRUG PRODUCTS CLEARLY FORECAST A CONCLUSION THAT A STATUTE LIMITING THE MAILING OF SEXUALLY ORIENTED ADVERTISING TO PERSONS WHO HAVE PREVIOUSLY REQUESTED IT WOULD BE HELD UNCONSTITUTIONAL. WE DO, HOWEVER, BELIEVE THAT A REASONABLE CHANCE EXISTS FOR DRAFTING A PROHIBITION AGAINST THE MAILING OF SEXUALLY ORIENTED ADVERTISING TO MINORS THAT WOULD WITHSTAND CONSTITUTIONAL CHALLENGE. THAT CONCLUDES MY PREPARED REMARKS. I WOULD BE PLEASED TO TRY AND ANSWER ANY QUESTIONS YOU MAY HAVE AND TO PROVIDE ANY ADDITIONAL ASSISTANCE YOU MAY REQUIRE WITH RESPECT TO POSSIBLE CHANGES IN THE PENDING BILLS. Mr. HUGHES. Thank you very much. The gentleman from Florida, Mr. Smith, any questions? Mr. LAWRENCE SMITH. Mr. Swagerty, I had asked the previous panel-and I'm sure you heard-about the recommendation you made that clarification be made in H.R. 3889 with respect to the authority of the Postal Service to conduct seizures and forfeitures. Would you explain why? Mr. SWAGERTY. Mr. Smith, I am sure that when that legislation was drafted it inadvertently left the Postal Service out, and this is our concern. We certainly support H.R. 3889. But our only concern there is the fact that the Postal Service was left out. Mr. DAVIS. Actually only partially left out. The Postal Service is named in the bill but not in a way that allows effective use of the authority. Mr. LAWRENCE SMITH. And you figure it needs to be clarified? Mr. LAWRENCE SMITH. Is there anything that's not in the bill that you would like to see in the bill other than Section 3010 repealed? Mr. SWAGERTY. No, we haven't said anything that we would like to have added. There are many very attractive aspects to that bill. Mr. LAWRENCE SMITH. Can you give me some idea of your occurrence rate over the last few years in terms of your own discovery of what you consider to be obscene material going through the mail? Has the incidence increased? Has the number of people requesting that those materials not be shipped increased? Have you made more arrests and more prosecutions on sexuallyoriented material or kiddie porn-especially in the area of kiddie porn-over the last few years? What's the actual condition of what's going on in the field? Mr. SWAGERTY. As to the complaints, absolutely. I have attached to my written testimony a chart on the 3010 list-I believe it's on the last page. I think you will notice that as of the end of fiscal year 1987, there were 285,000 names on that list. As of about a week or so ago-which represents the first 8 months of our fiscal year-there are about 100,000 additional names on that list. Mr. LAWRENCE SMITH. So 1980 to 1983, the number of names went down about 30 percent, 35 percent. And now it's almost doubled, back up. What reason would you give for the reduction in the number of names and then the gigantic increase? In 1984, we passed the Child Protection Act, and it looks like more people wanted to be protected. What happened between 1980 and 1983, was there a lull in sexually-oriented material or obscenity being sent through the mails? Mr. SWAGERTY. I will let Mr. Davis answer what we believe to be the reasons for the dip there. If I could just quickly address the increases over the past few years-there are several things, of course, with the Attorney General's Commission on Pornography, a great deal more interest. The religious groups are much more active in this area and working with their people and making it known about what can be done as far as the mailings are concerned. We have made a very concerted effort in the Postal Service to improve the way we handle the list. We have developed-and you were looking at it earlier, sir-the Kit 8-which is a much more simplified-which we can provide to our Postal customers. I think there's just the entire climate now, and there's more of a hue and cry-so we are seeing the numbers go up dramatically at this time. Mr. LAWRENCE SMITH. What would account for the decrease? I am curious. Mr. DAVIS. Let me give you some guesses on that I think more than certain knowledge. I think one factor is, right after the statute passed, of course, we gave it a lot of publicity-let people know how to use it and made it easy for the public to use it. I think we got sloppy after that. I think we just didn't do a good job of publicizing the statute for a while. As Inspector Swagerty mentioned, I think that's been cor rected. Another factor there, I think around 1983 is when you first started seeing the very graphic ads for video porn. I think that really jolted the public. I think people were getting that stuff and were extremely upset by it and we started seeing a rapid increase in outraged people. Our answer to that is take advantage of these statutes—that's the best we've got-and they did. So that's where the upswing is coming from. Mr. LAWRENCE SMITH. It's some reaction not only to better public awareness of what's available to them, but a reaction to what's beginning to go through the mail. Mr. DAVIS. Yes, I think so. Mr. LAWRENCE SMITH. Have your Inspectors noticed a significant increase in what's going through the mail? And what about what's coming from outside the United States? Mr. SWAGERTY. As I said, the complaints certainly are up. I think it would be very fair to say also that in the past several years the mailings that have occurred certainly have increased too. It's no secret that for a good number of years that the Federal Government was out of the business of investigating and prosecuting these dealers. And I think during those periods of time that it did flourish. This is going to change-I can guarantee you that. But I think certainly in that kind of a climate you would see an increase in that kind of an activity. U.S. Customs will testify following me and I would rather they would answer as far as the importation of this type of material. Mr. LAWRENCE SMITH. One final question. Do you inspect the exterior of envelopes for suspected duplications of companies-in other words, selling their products, basically the same folks but with maybe a different name on the envelope? What do you do in terms of trying to determine whether or not obscene materials-kiddie porn and the like are going through the mails? You can't open the envelopes. You can't open the mail unless they are already opened-not stapled, not glued, not anything. A lot of it comes in sealed envelopes. Do you have an ongoing program for inspecting the outsides to determine if one or two companies are making multiple mailings P Do you think that it would be worthwhile to put a program like that ongoing? Is there any legal bar against inspecting the exteriors of the envelopes? Mr. DAVIS. I don't think there's a legal bar as such, but it is so easy to evade something like that. You can put anything you want in a plain envelope and dump it in a collection box. It would be so easy to evade any kind of surveillance of that type. Mr. LAWRENCE SMITH. Now, I have received some of these mailings. My kids have received them. The envelopes aren't plain brown ones. They are calculated to get you to open them up. I am curious whether or not you have anybody looking at some of the outsides to determine if-and if you did have somebody looking and they discovered one that peaked their curiosity, what would be your legal rights in terms of opening it? Mr. DAVIS. That comes up in the course of investigations. But to do it systematically all the time, day in and day out, I don't think would be productive. These companies don't operate out of the same address. You know, they close down and they start up somewhere else under another name. Mr. LAWRENCE SMITH. I understand that. Mr. DAVIS. I think it would be real tough to try to get anything solid out of that type of activity. Mr. LAWRENCE SMITH. If you found one of those envelopes through happenstance-somebody who worked in the postal department brought it to the supervisor and said, this looks pretty much like something I wouldn't want to get in the mail-and if you had reasonable suspicion that it was, would you open it? Mr. DAVIS. No, not without a search warrant. Mr. LAWRENCE SMITH. OK. Thank you. Mr. SWAGERTY. Mr. Smith, I can mention one exception. The Postal Inspection Service does have test boxes set up around the country to put our names on these—or make sure we are on these mailing lists, and we are collecting this information. Mr. LAWRENCE SMITH. Thank you. Thank you, Mr. Chairman. Mr. HUGHES. Mr. Swagerty, just a couple of questions. Taking you back to Section 3010 of 39 U.S.C., that presently is a violation of willfully using mail for the purpose of carriage or delivery of any sexually-oriented advertisements in violation of Section 3010. That's been upgraded through our sentence enhancement provisions, I believe in 1986, to $250,000 for individuals and $1 million for corporations. Is it your testimony that you don't believe that that's sufficient penalty, and up to 5 years in prison? Mr. DAVIS. Our suggestion is that Section 3011 of Title 39 be amended to increase the civil penalties for violations. The penalties under 1735 are adequate, the Section 3010 violations. But we also feel that it would be effective to amend Section 1735 to pick up the violations of Section 3008, which right now is not covered by Section 1735 at all. Mr. HUGHES. I understand that-for a violation of the notice. Mr. HUGHES. I understand that, and I think your point is well |