Despite vows to crack down, legislators couldn't agree on the definition of virtual child pornography.

Michelle Madigan, Medill News Service Wednesday, November 27, 2002

WASHINGTON -- Despite efforts by senior members of both the House and Senate to crack down on Internet child pornography, two proposed bills failed to become law this year.

This failure is largely due to disputes over the definition of virtual child pornography, which both bills targeted. Virtual child porn is made with morphed computer images and without real children.

"The proliferation of virtual pornography has enabled child pornographers to escape conviction by arguing that it is so difficult to distinguish the virtual child from the real one," says Anne Coughlin, a law professor at the University of Virginia School of Law.

Trying Again

Both bills were in response to a Supreme Court ruling that declared unconstitutional the Child Pornography Prevention Act of 1996, which made it a crime to spread "virtual" child pornography on the Internet. The court said the law's definition of virtual child porn was too broad.

Since the Supreme Court struck down the law, lawmakers have attempted to pass a substitute, but the challenge was writing a new law that would not violate First Amendment free speech rights.

Some members of Congress proposed a Constitutional amendment to prohibit child pornography, even if the pictures were computer-generated, but civil liberties groups quickly shot down the idea and the proposal was dropped.

Representative Lamar Smith (R-Texas) proposed a bill in the House that "reaffirms the ban on child pornography in a manner that can withstand constitutional review," he said. The House passed the bill unanimously last June and Smith urged the Senate to act.

Second Bill
Senators Orrin Hatch (R-Utah) and Patrick Leahy (D-Vermont) introduced a second bill aimed at narrowing "the definition of virtual child porn by requiring consideration of the artistic, literacy, or educational value of the work as a whole," Leahy said.

The Senate bill was "carefully tailored with an eye towards satisfying the precise concerns identified by the Supreme Court," Coughlin wrote in a letter to Leahy. The Senate passed the bill by unanimous consent during the post-election session in November.

But because the two bills were different, they did not become law; they had to be identical in order to receive the president's signature.

Different Definitions
The key difference was the way in which they defined virtual child porn. The House version offered a narrow definition, saying it must be "computer-generated images" that are "indistinguishable" from actual child porn. The Senate's definition was not as narrow, but it did include some elements of the obscenity test that make it more difficult for prosecutors to prove guilt. The House version rejected suggestions to include an obscenity test.

The differences were not resolved before the end of the congressional session.

"The House of Representatives' Republican leadership decided to adjourn without either taking up the Hatch-Leahy bill or working with us to resolve any differences," said Leahy.

A spokesperson from the House Majority leader's office said the differences in the Senate version were "unacceptable," killing the bill for this year.

The House and Senate plan to work on a compromise and introduce new legislation when they return in January.

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