Home News Testimony Limited Expansion of the Predicate Offenses for Title III Electronic Surveillance
  • Francis A. Gallagher
  • Deputy Assistant Director, FBI
  • Federal Bureau of Investigation
  • Before the House Judiciary Committee, Subcommittee on Crime
  • Washington, DC
  • June 21, 2001

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.

 
Recent Testimonies
09.18.14
TSC's Role in the Interagency Watchlisting and Screening Process Christopher M. Piehota, Director, Terrorist Screening Center, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Subcommittee on Transportation Security, Washington, D.C.
09.17.14
Worldwide Threats to the Homeland James B. Comey, Director, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Washington, D.C.
09.10.14
Cyber Security, Terrorism, and Beyond: Addressing Evolving Threats to the Robert Anderson, Jr., Executive Assistant Director, Criminal, Cyber, Response, and Services Branch, Federal Bureau of Investigation, Statement Before the Senate Committee on Homeland Security and Governmental Affairs, Washington, D.C.
07.16.14
FBI Efforts to Combat Elder Fraud Joseph S. Campbell, Deputy Assistant Director, Criminal Investigative Division, Federal Bureau of Investigation, Statement Before the Senate Special Committee on Aging, Washington, D.C.
07.15.14
Taking Down Botnets Joseph Demarest, Assistant Director, Cyber Division, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Subcommittee on Crime and Terrorism, Washington, D.C.
06.11.14
Oversight of the Federal Bureau of Investigation James B. Comey, Director, Federal Bureau of Investigation, Statement Before the House Judiciary Committee, Washington, D.C.
05.21.14
Oversight of the Federal Bureau of Investigation James B. Comey, Director, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Washington, D.C.
05.13.14
Combating Economic Espionage and Trade Secret Theft Randall C. Coleman, Assistant Director, Counterintelligence Division, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Subcommittee on Crime and Terrorism, Washington, D.C.
04.16.14
The FBI’s Role in Cyber Security Richard P. Quinn, National Security Assistant Special Agent in Charge, Philadelphia Field Office, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Subcommittee on Cyber Security, Infrastructure Protection, and Security Technologies, Washington, D.C.
03.27.14
FBI Budget Request for Fiscal Year 2015 James B. Comey, Director, Federal Bureau of Investigation, Statement Before the Senate Appropriations Committee, Subcommittee on Commerce, Justice, Science, and Related Agencies, Washington, D.C.
More