Mr. Chairman and Members of the Subcommittee: I am very pleased to be here today to discuss the Department of Justice program for enforcement of the child pornography laws. During the past four years the Department, under the leadership of the Criminal Division, has been working to upgrade its enforcement of such laws. The effort began in October 1982 with a memorandum from then Attorney General William French Smith to all United States Attorneys advising that pornography is "a matter of prime concern and we must enforce vigorously the existing federal anti-pornography laws, particularly in the priority areas" delineated by Department policy. That policy places particular emphasis on cases involving large scale multi-state distributors, organized crime figures, and child pornography. In August 1983, Assistant Attorney General Stephen S. Trott sent a memorandum to all United States Attorneys reiterating the Attorney General's position and requesting each United States Attorney to meet with the officials in charge of the local FBI and Postal Inspection Service offices to evaluate the need for additional pornography enforcement efforts in each district. He also suggested that consideration be given to raising the issue with the local Law Enforcement Coordinating Committee. During the past four years, child pornography has been a particular focus of the Department's enforcement program, with the resulting successes and failures: -2 1. Child Pornography Investigations and Prosecutions As of 1982, it was apparent that the existing federal child pornography statute was grossly inadequate. It required that the Government establish that dealing in child pornography be for a commercial purpose, that the material in question be legally obscene, and that the depicted children be under the age of 16. Those requirements worked together to make the statute of very little use. Accordingly, the Criminal Division took the lead in drafting amendments to 18 U.S.C. 2251 and 2252 for consideration by the Congress. With the strong support of this Subcommittee, that effort culminated in May 1984, when the President signed into law significant new child pornography legislation. Utilizing the new statutes, the Criminal Division, working closely with the responsible investigative agencies and United States Attorneys' offices throughout the country, has moved aggressively against people who produce, market, or purchase child pornography. Criminal investigations derive primarily from two sources: (1) border seizures by the Customs Service of child pornography entering the United States from overseas, and (2) undercover activity within the United States carried out primarily by the Postal Inspection Service. The results of these efforts have been extremely gratifying. During the last two years, almost three times as many individuals have been indicted and convicted for federal child pornography violations as compared with the previous six and one-half years. -3 Indeed, the level of federal investigative activity in the child pornography area has grown to such a point that a key issue now relates to coordination of the activities of the various United States Attorneys and investigative agencies so that they do not come in conflict with each other. Committee staff has been provided with a copy of our annual report to the Chairman of the Judiciary Committee on child pornography prosecutions. This increased investigative and prosecutive activity has quite clearly drawn the attention of those who might wish to distribute child pornography commercially. As a result, such material is no longer readily available within the United States. Few commercial pornography dealers appear willing to take the risk of handling child pornography. At present, therefore, the bulk of the distribution of child pornography appears to be among pedophiles who either trade photographs or otherwise distribute them for minimal compensation. In addition to criminal prosecutions, the Department also pursues civil forfeiture of certain child pornography material seized by the Customs Service in border searches. Generally, pre-puberty and early adolescent material is channeled into criminal investigations, rather than being civilly forfeited. However, a substantial amount of older adolescent child pornography is seized entering the United States. Due to the difficulty in establishing age, it is frequently impossible to pursue a criminal prosecution, as the Government would have to establish that the depicted child or children are, beyond a reasonable doubt, under the age of 18. Accordingly, this material is channeled into civil forfeiture actions where the Government has a lesser burden of proof. Pursuant to Supreme Court decision, forfeiture actions must be filed within 14 days of the time of the seizure and must be finally decided within 60 days of the date of filing. Prior to 1982, some in the Department felt that these time limitations precluded the use of pornography seized at the border in criminal investigations. The Criminal Division formulated legal arguments concerning the inapplicability of the 14 day rule to materials channeled into a criminal investigation and has prevailed in Pre-puberty and early adolescent materials seized at the border are now being routinely channeled into criminal investigations. court. Although we have not yet had an opportunity to obtain a legal test, should a criminal investigation fail to result in a prosecution, we are prepared to argue that the child pornography material may then be the subject of a civil forfeiture action, notwithstanding the passage of more than 14 days since the time of seizure. We have developed several arguments that the 14 day rule should have no application to child pornography. For example, the government's parens patriae responsibilities to the depicted child victims should not permit the innocent delay caused by an investigation to estop it from preventing entry of the material into the public domain. -5 Further, to stem the importation of child pornography, the Criminal Division has established an interagency group to provide leads to European countries so that they may prosecute their producers and exporters of child pornography. We believe that the Department's child pornography enforcement program is fully effective. However, we are committed to continuing to work together with the investigative agencies and United States Attorneys' offices to maintain unrelenting pressure on those who engage in these heinous violations. Although "dial-a-porn," the transmission of erotic messages through telephone services, is, strictly speaking not a facet of child pornography, I would like to mention our experience with it because a principal concern has been its availability to children of tender years. In 1984, the Criminal Division did a detailed analysis of the very difficult legal issues which exist relating to the prosecution of the providers of so-called dial-a-porn. Although we concluded that such a prosecution would be extremely difficult, we supported the efforts of the United States Attorney for the District of Utah to prosecute the Carlin Communications Company for its distribution of dial-a-porn. Extensive memoranda of law were prepared by the Division to respond to motions to dismiss. Regrettably the trial judge dismissed the case pretrial and the Department is pursuing an appeal. At the same time, the Department is supporting legislation which would clearly make the |