Testimony of Francis A. Gallagher, Deputy Assistant Director,
Criminal Investigative Division, FBI
Before the House
Judiciary Committee, Subcommittee on Crime
June 21, 2001
"Limited Expansion of the Predicate Offenses for Title
III Electronic Surveillance"
Good morning, Mr. Chairman,
Congressman Scott and Members of the Subcommittee. I am very
pleased to appear before you today to discuss the need for
a very limited expansion of the predicate offenses for Title
III electronic surveillance to include additional statutes
which are designed to protect our children from sexual exploitation.
H.R. 1877, the Child Sex Crimes Wiretapping Act of 2001, recently
introduced by the Honorable Nancy l. Johnson, addresses this
need.
While investigating the 1993
disappearance of 10-year-old George Stanley Burdynski, Jr.,
in Prince George's County, MD, the FBI determined that adults
were routinely using computers to transmit images of minors
showing frontal nudity or sexually explicit conduct, and to
lure minors into illicit sexual activities. It was through
this investigation that the FBI recognized that the utilization
of computer telecommunications was rapidly becoming one of
the most prevalent techniques by which pedophiles and other
sexual predators shared sexually explicit photographic images
of minors, and identified and recruited children for sexually
illicit relationships.
In 1995, the FBI began an undercover
investigation, code named "Innocent Images," focusing
on persons who, through the use of on-line computers, indicate
a willingness to travel for the purposes of engaging in sexual
activity with a child; those persons who use the Internet
or other online services to disseminate original images of
child pornography which they manufactured or produced; and
those who possess, receive and distribute child pornography.
Today the FBI is conducting more than 20 undercover operations
throughout the united states. Since 1995, the FBI has investigated
more than 4,900 cases involving persons traveling interstate
for the purposes of engaging in illicit sexual relationships
with minors and/or persons involved with the manufacture,
dissemination and possession of child pornography.
Based on our experience in conducting
the Innocent Images National Initiative, we are of the opinion
that an expansion of the list of predicate offenses for Title
III electronic surveillance (codified at Title 18, United
States Code [U.S.C.], §2516)(1), to include additional
statutes pertaining to sexual exploitation of children, is
not only warranted but necessary.
Pursuant to Title 18, U.S.C.,
§2516(3), the government can apply to a federal district
court judge for authority to intercept electronic communications
(pager, facsimile and computer transmissions) when such interception
may yield evidence of any federal felony. Communications carried
out by means of the Internet are electronic communications
and thus are covered by this limited authority. However, when
it comes to oral communications (those intercepted by means
of a concealed microphone) and wire communications (communications
intercepted by wiretap), authority for interception can only
be granted when the predicate offense being investigated is
specifically enumerated in Title 18, U.S.C., §2516(1).
It is our strong belief that
Title 18, U.S.C., §2252a, entitled certain activities
relating to material constituting or containing child pornography,
should be designated as one of those Title III predicate offenses.
In 1996, Congress passed, and
the President signed, the Child Pornography Protection Act
(CPPA) in an effort to close several loopholes existent in
the original child pornography law. The original law, entitled
"Certain Activities Relating to Material Involving the
Sexual Exploitation of Minors," codified at Title 18,
U.S.C., §2252, is commonly referred to as the "old
statute." The new law, entitled "Certain Activities
Relating to Material Constituting or Containing Child Pornography,"
codified at Title 18, U.S.C., §2252a, is commonly referred
to as the "new statute."
The original child pornography
statute, which far predates the development of computers and
the Internet, did not address the issues of computer created
"virtual child pornography." The "old statute"
makes it a crime for any person to "knowingly transport
or ship a visual depiction in interstate commerce or knowingly
receive, distribute or possess a visual depiction that has
been mailed, shipped or transported in interstate commerce,
if such visual depiction involves the use of a minor engaging
in sexually explicit conduct or if the visual depiction is
of such conduct." Under the "old statute,"
the visual depiction had to be of an actual minor, defined
as "any person under the age of 18 years."
The "new statute"
was designed to address the technological advances of computers,
wherein the definition of the lay term child pornography was
expanded to include child pornographic images of "virtual"
children created through the use of modern computer technology.
Title 18, U.S.C., §2252a, makes it a crime for any person
to "knowingly transport or ship child pornography in
interstate commerce or knowingly receive, distribute or possess
child pornography that has been mailed, shipped or transported
in interstate commerce." As used in the new statute,
the term child pornography is defined in Title 18, U.S.C.,
Section 2256 (8) (the definition section of chapter 110 of
Title 18) as a visual depiction that "appears to be"
of a minor engaging in sexually explicit conduct, or "conveys
the impression" that they depict a minor engaging in
sexually explicit conduct. The expanded definition of child
pornography is based upon an interest in prohibiting any material
whether it depicts real children, or computer generated images
of children.
Due to anticipated constitutional
challenges to the "new statute," Title 18, U.S.C.,
§2252a, Congress left Title 18, U.S.C., §2252, the
"old statute," in effect as a fall back for investigators
and prosecutors in the event that all or part of Title 18,
U.S.C., §2252a were struck down by the courts. Title
18, U.S.C., §2252a is a more powerful child pornography
statute and clearly addresses the new technologies and increasing
threats against children. The original child pornography statute
is listed as a Title III predicate offense, but the new one,
Title 18, U.S.C., §2252a is not.
During the summer of 1995, the
Baltimore division of the FBI conducted a court authorized
Title III interception of electronic (Internet/computer) communications
in which the electronic mail (e-mail) of six subjects was
intercepted. Since these subjects were using computers to
share illegal child pornography, Title 18, U.S.C., §2252
was used as a predicate offense for the FBI to seek authorization
from the court to use the Title III interception technique.
That investigative technique enabled the FBI to obtain evidence
of the criminal activities of a secretive group of men who
were using computers to traffic in sexually explicit pictures
of young boys. From the intercepted computer communications
of these subjects, more than 30 additional subjects were identified,
including at least two who were found to have sexually abused
children. This demonstrates the usefulness of Title III electronic
surveillance of computer communications in child pornography
investigations.
We believe that the interception
of wire and/or oral communications could have significantly
enhanced this investigation based on the fact that pedophiles
and other sexual predators who utilize the Internet and other
on-line services often take their criminal activities "offline."
The only applicable child pornography statute in existence
at the time of this investigation, Title 18, U.S.C., §2252,
was listed as a predicate offense and therefore would have
permitted an application under Title III to intercept such
communications. Under the current Title III scheme, the FBI
has the authority to intercept computer, and other electronic
communications, that may constitute evidence of violations
of Title 18, U.S.C., §2252a. We do not however, currently
have authority to intercept wire and/or oral communications
that may constitute such evidence, because Title 18, U.S.C.,
§2252a is not specifically enumerated as a predicate
offense under Title 18, U.S.C., §2516(1).
We believe that adding Title
18, U.S.C., §2252a, a more effective child pornography
statute, to the list of Title III predicate offenses will
enhance our ability to successfully identify and prosecute
these types of offenders and possibly prevent additional children
from being sexually exploited and abused.
Additionally, we believe that
Title 18, U.S.C., §2422, entitled coercion and enticement,
(commonly referred to as the enticement statute) and Title
18, U.S.C., §2423, entitled transportation of minors,
(commonly referred to as the traveler statute) should also
be added to the list of Title III predicate offenses.
With the increasing prevalence
of computers and the Internet in our society, a burgeoning
number of sexual predators are using computer communications
to recruit children with whom they hope to have sexual relations,
in violation of Title 18, U.S.C., §2422 and/or §2423.
Title 18, U.S.C., §2422(a) makes it a crime for someone
to entice or coerce a child to travel in interstate commerce
to engage in child sexual activity/prostitution. Title 18,
U.S.C., §2422(b) makes it a crime to use an interstate
facility (computer, Internet service provider) to entice or
coerce a child to engage in child sexual activity/prostitution,
and no travel needs to occur by either the victim or subject.
Title 18, U.S.C., §2423(a) makes it a crime for someone
to transport a child in interstate commerce with the intent
that the child engage in sexual activity. Title 18, U.S.C.,
§2423(b) makes it a crime for someone to travel interstate
for the purpose of engaging in sex with a child.
Under Title 18, U.S.C., §2516(3),
the FBI currently has the ability to seek court authority
to intercept only electronic (computer) communications that
constitute evidence of violations of both the "coercion
and enticement" statute and the "traveler"
statute. we lack the ability to intercept wire and/or oral
communications because neither of these statutes is specifically
enumerated as a Title III predicate offense Title 18, U.S.C.,
§2516(1). The ability to intercept such communications
on a real time basis would greatly enhance the ability of
the FBI to respond to crisis situations where children are
at risk. In addition, it would allow us to collect strong
evidence to be used in the prosecution of child predators.
Based on our experience in conducting
the Innocent Images National Initiative, we have found that
pedophiles and other sexual predators who utilize the Internet
and other commercial on-line services to meet and converse
with children for illicit sexual purposes often take their
relationships "offline." There are numerous cases
where the on-line sexual predator will provide the child with
a telephone calling card number or will request that the child
call them collect, so that the child can speak with the predator
on the telephone. It is the experience of the Innocent Images
National Initiative that children who engage in on-line relationships
with these sexual predators go to great lengths to conceal
their relationships from their parents. In cases where a parent
inadvertently discovers the relationship between their child
and an on-line sexual predator, the child is often disciplined
and their computer privileges are taken away. Very frequently
the child victim thinks he or she is "in love" with
the subject and, therefore, is uncooperative with and resentful
toward his or her parents and/or law enforcement. These children
then continue their relationships "offline" utilizing
the telephone as well as meeting the predator in person.
The importance of having the
ability to intercept the communications of the predator and
the victim whether they occur over the computer, in person,
or by means of the telephone cannot be overstated. The authority
to monitor "offline" conversations would in many
cases enable the FBI to learn of a planned meeting between
the predator and the child. the FBI could then intercede prior
to the victimization of the child. Such authority would also
allow for the collection of valuable evidence which could
result in the identification of other child sex offenders
and child victims. We currently lack the ability to intercept
wire and/or oral communications in these situations because
Title 18, U.S.C., §2422 and Title 18, U.S.C., §2423
are not specifically enumerated as Title III predicate offenses
in Title 18, U.S.C., §2516(1).
Enabling the FBI to obtain Title
III authority for the interception of wire and oral communications
will expand our investigative and prosecutive efforts which
are aimed not only at the proliferation of child pornography,
but at the pedophiles and sexual predators who are sexually
exploiting children.
For all of these reasons, the
FBI would like to see Title 18, U.S.C., §2252a, certain
activities relating to material constituting or containing
child pornography, Title 18, U.S.C., §2422 coercion and
enticement, and Title 18, U.S.C., §2423 transportation
of minors, added to the list of Title III predicate violations
as proposed by H.R. 1877. In our view, these proposed predicate
offenses are entirely consistent with the two child sexual
exploitation offenses already on the list. A limited expansion
of this nature will, as noted previously, improve our ability
to investigate offenses involving the sexual exploitation
of children - a goal we all share.
This concludes my prepared remarks.
I would like to respond to any questions that you may have.
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