House bans 'morphed' child pornography

The 413-to-8 vote aims to circumvent a recent Supreme Court decision that nixed an earlier ban on computer-generated sex images of minors. The Senate introduced a similar proposal.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
WASHINGTON--The U.S. House of Representatives voted overwhelmingly Tuesday to restrict computer-generated sex images of minors.

The 413-to-8 vote aims to circumvent a recent Supreme Court decision that nixed an earlier ban on "morphed" child pornography. A similar proposal has been introduced in the Senate. With the enthusiastic backing of both Democrats and Republicans, final passage of a bill this year is all but certain.

"This bill closes the door left open by the recent Supreme Court decision," Rep. Lamar Smith, R-Texas, said at a press conference Tuesday. "I urge the Senate to take action immediately."

Law enforcement considers restrictions on computer-generated images a key tool in fighting child pornography, backing that has made the issue an easy sell in Washington despite lingering constitutional concerns. Congress has moved swiftly to pass replacement legislation after the high court struck down the previous law April 16 on First Amendment grounds.

Immediately after the court's decision, politicians from both major parties pledged to try again.

That afternoon, Sen. Orrin Hatch, a Utah Republican and one-time Mormon bishop, vowed to "craft new legislation." Attorney General John Aschroft held a press conference two weeks later to lend the Bush administration's support to the letter to Congress offering tips on how to craft a law that would survive Supreme Court scrutiny.

Ashcroft said in a statement Tuesday evening that the new bill "will strengthen the ability of law enforcement to protect children from abuse and exploitation. I urge the Senate to bring this important legislation to the floor as soon as possible."

The new bill includes relatively minor changes to the 1996 version of the law, known as the Child Pornography Prevention Act. That legislation had prohibited any image that "appears to be" a minor.

By contrast, the new Child Obscenity and Pornography Prevention Act (COPPA) refers to any computer-generated image that is "virtually indistinguishable from that of a minor engaging in sexually explicit conduct."

Supporters of the new legislation claim it has been carefully crafted to pass constitutional muster. Rep. Adam Schiff, D-Calif., said COPPA had been written "as narrowly as possible" to avoid running afoul of the First Amendment's guarantee of freedom of expression.

But some legal scholars said they are dubious about whether the changes will be sufficient to survive an expected legal challenge, once the bill becomes law.

"I don't understand why they think this statute is going to eradicate any of the problems that the Supreme Court explicitly delineated in its recent decision," said Megan Gray, a lawyer at the Electronic Privacy Information Center who specializes in free-speech law.

The courts have repeatedly turned back attempts to limit digital pornography, striking down laws aimed at curtailing publication of smut on the Internet and requiring public libraries to filter Internet content.

In their April ruling, a 6-3 majority of the justices wrote that Congress' first try at banning "morphed" porn was akin to prohibiting dirty thoughts.

"First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end," Justice Anthony Kennedy wrote for the majority. "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

Prosecutors argue that the COPPA bill is needed, since otherwise it is too difficult to prove that an actual child was involved in the production of an electronic image on, say, a seized hard drive.

But foes of COPPA in the House Judiciary Committee called the measure "a hasty attempt drafted by the Department of Justice to override the United States Supreme Court's decision," which is "fatally flawed."

Rep. John Conyers, D-Mich., the top Democrat on the committee, voted against COPPA on Tuesday. The only Republican to vote against COPPA was libertarian firebrand Rep. Ron Paul of Texas.