By Meredith Ward, Manager, Legislative and Media Affairs
n a bipartisan effort, Congress recently passed the Child Protection Act of 2012. Supported strongly by the IACP, this legislation will significantly enhance the capability of state, local, and federal law enforcement to pursue individuals who commit child pornography and exploitation crimes. The IACP is proud to support an initiative that will go into effect after President Obama signs it into law.
Known as S. 3456 and H.R. 6063, the bill increases the criminal sentence range from 10 years to 20 years for the charge of possession of child pornography. As Internet and technology capabilities change, combating the availability and the spread of child pornography has become more difficult for every law enforcement agency. The increased sentencing provision of the bill rightfully elevates the penalty of the crime with the severity of the crime—which, hopefully, will deter people from committing this crime.
Further, the Child Protection Act prevents and prosecutes the harassment or intimidation of child witnesses without requiring serious threats or harm. In the spotlight of an investigation, additional harassment and intimidation are methods used by abusers to coerce or scare witnesses. Prosecuting these actions will, in effect, prevent major distress as well as ensure that the judicial process is not thwarted by its perpetrators.
This noteworthy legislation also will grant the U.S. Department of Justice administrative subpoena powers to aid states in finding sex offenders. Under this new authority, sex offenders venturing outside of their registered jurisdictions can be pursued and investigated. U.S. Marshals will be given the ability to apprehend fugitive sex offenders. To assist law enforcement, the bill reauthorizes funds for the Internet Crimes Against Children Task Forces that train executives and officials on how to manage cases of child sexual abuse.
Senate Judiciary Committee Approves Electronic Communications Privacy Act Reform
The Senate Judiciary Committee recently approved H.R. 6529, an update to the Electronic Communications Privacy Act originally passed in 1986. The bill would require government and law enforcement agencies to obtain probable-cause warrants for cloud-based information and emails. Meant to address privacy concerns, this bill ultimately raises apprehension for the law enforcement community and could change the landscape of future investigations.
In a letter to Senate leadership, law enforcement groups expressed that “the crime scene of the 21st century is filled with electronic records and other digital evidence . . . electronic communications records often hold the key to solving the case.” In many cases, electronic communications are essential elements that assist law enforcement in pursuing perpetrators or proving innocence. The proposed legislation provides challenges to law enforcement as it raises issues of provider responsiveness, voluntary disclosure, and issues surrounding notification.
Currently, law enforcement agencies can acquire private emails without warrants as long as the needed content has been stored by a third-party server for more than 180 days. Agencies need only an administrative subpoena to pursue critical electronic information during an investigation. Rapid and reliable access to these electronic files is fundamental to the job performance of police officers. However, there are no requirements or legislation in place that compels communication providers to respond to law enforcement requests in a timely manner. Inconsistent assistance from providers often results in lengthy investigations that hinder the judicial process.
Even in situations of emergency needs, the current provision impedes agencies in their investigations by placing decision-making power in the hands of providers. Presently, only private providers can declare which cases are deemed “emergencies”—rather than law enforcement officials presiding in a case. The emergency declarations are on a voluntary basis under Section 2702. This hampers online child exploitation investigations as providers are not required to disclose information. This clause has created serious obstacles as official requests have been severely delayed or denied.
The IACP also believes that notification provisions in general are important concerns. Newly proposed notice provisions could cause unnecessary risks and wait for agencies on a large number of cases. Additionally, the proposed conditions of preservation should be reexamined so that notifications of suspect individuals do not jeopardize those investigations.
IACP understands there are concerns relating to digital privacy threats. As the digital realm continues to expand, government surveillance powers must balance privacy concerns and public safety. The IACP hopes to discuss this legislation but will continue to pursue options that do not limit the scope of investigations and impede the judicial process. ♦
Please cite as:
Meredith Ward, "IACP-Endorsed Child Protection Act of 2012 Passes in Congress, Seeks Signature from President," Legislative Alert, The Police Chief 80 (January 2013): 10.