The Honorable Patrick Leahy
Chairman
Senate Judiciary Committee
Senate Dirksen Building
Washington, DC 20510

The Honorable Arlen Specter
Ranking Member
Senate Judiciary Committee
Senate Dirksen Building
Washington, DC 20510

RE:   ACLU Opposes Senator Kyl’s Proposed Amendments to S. 431, Keeping the Internet Devoid of Sexual Predators (“KIDS”) Act and S. 1829, Protect our Children First Act of 2007

On behalf of the American Civil Liberties Union (ACLU) and its 53 affiliates, we write in opposition to all of the amendments being offered by Senator Kyl during the Senate Judiciary Committee mark up of S. 431 and S. 1829 on December 13. The reasons for our opposition to these amendments are explained below.

One of Sen. Kyl’s amendments would amend 18 U.S.C. 2252(a)(4), the federal statute regarding offenses involving material that depicts the sexual exploitation of minors.  This amendment would add language which would make it a crime not only knowingly to possess sexually explicit materials on U.S. government property and territories, but it would also be a crime to “knowingly access with intent to view.”  The amendment’s proposed mens rea is overly broad and vague and could result in innocent people being prosecuted for this offense.  For example, federal law enforcement officials housed on U.S. property in the course of an investigation of child internet sex crimes would surely be guilty of “knowingly accessing” sexual explicit materials “with the intent to view.”  The language in the current statute, which is more narrowly focused on possession of sexually explicit materials involving the use of minors, is the more appropriate mens rea for this crime. 

Another one of Sen. Kyl’s amendments would create mandatory minimum sentences for the crime of sexual exploitation of minors.  The ACLU opposes mandatory sentences because they deprive judges of the ability to impose sentences that fit the particular offense and offender. Although mandatory minimums were designed to reduce the racial inequalities that often result from judicial sentencing discretion, in practice, they shift discretion from the judge to the prosecutor.  Prosecutors retain the power to plea bargain and choose which defendants they will offer plea agreements to in order for those defendants to avoid the mandatory penalty.

A third amendment being offered by Sen. Kyl would triple the fines for electronic service providers or remote computing services which “knowingly and willfully” fail to report child pornography crimes. In addition, this amendment would also create a crime for “negligently” failing to report child pornography crimes.  The ACLU is very concerned about the new negligence standard that this proposal would create because it would in essence force electronic service providers to monitor the content of internet traffic in order to avoid running afoul of the law.  When electronic service providers monitor the internet content of customers, it is a clear violation of the 1st Amendment. 

This amendment also gives the FCC authority to levy civil penalties against electronic service providers in order to enforce these reporting requirements.  We are concerned that this new FCC authority is outside the scope of the agency’s mission and is an inappropriate role for the FCC which is charged with regulating interstate and international communications by radio, television, wire, satellite and cable.

Sen. Kyl is proposing another amendment which would require people who were convicted of sex offenses before the enactment of the Adam Walsh Act to register in the national sex offenders’ registry. This requirement violates the Ex Post Facto Clause of the U.S. Constitution. Creating an additional punishment after a person has been convicted of a crime is unconstitutional.  The amendment attempts to resolve the ex post facto problems by labeling the failure to register as a sex offender a “continuing offense,” and change the language of the statute from “travels” to “traveled” at any time “after the date of conviction.”  This will not resolve the fact that the duty to register arose after the offenders where convicted, thus making this provision unconstitutional. 

In addition, this amendment would also eliminate the statute of limitations for sex offender crimes against children. Statutes of limitations are primarily designed to assure fairness to defendants.  An ability to prepare a defense is clearly undermined in a case where a claim is revived after a period of time such that “evidence is lost, and witnesses have disappeared.”  We oppose the expansion of the statute of limitations for this category of crimes.

The final amendment being offered by Sen. Kyl attempts to ease the commerce clause requirement for the prosecution of people convicted of sexual exploitation of minors or possessing sexually explicit materials. The amendment would allow for the commerce clause requirement to be fulfilled if a person uses “any means or facility of interstate or foreign commerce.”

In United States v. Lopez, 514 US 549 (1995), the Supreme Court held “that the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce.”  In Lopez, the Court clarified that federal crimes must have some connection or nexus to interstate commerce.  The language in this amendment is an attempt to skirt that commerce clause standard established in Lopez by only requiring “using means of facility of” interstate commerce versus actually traveling or transporting across state lines.  This is important because the federalization of criminal law is duplicative of a state function, and depletes federal resources. When federal law enforcement resources are used to address routine street crime, it distracts the government from the important task of addressing crime that only federal investigation and prosecution can combat.  If commerce clause requirements can not be met by federal prosecutors then crimes should be prosecuted on the state level.

We urge you and other members to oppose these amendments during tomorrow’s mark up in the Senate Judiciary Committee. If you have any questions about the ACLU’s position on Sen. Kyl’s amendments, please contact Jesselyn McCurdy, Legislative Counsel at phone: (202) 675-2314 or e-mail: jmccurdy@dcaclu.org.

Sincerely,

Caroline Fredrickson
Director
ACLU Washington Legislative Office

Jesselyn McCurdy
Legislative Counsel
ACLU Washington Legislative Office