Protection of Children from Sexual Predators Act of 1998; implementation: Designation of agencies to receive and investigate reports of child pornography,

[Federal Register: May 26, 1999 (Volume 64, Number 101)]

[Proposed Rules]

[Page 28422-28424]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26my99-26]

DEPARTMENT OF JUSTICE

28 CFR Part 81

[AG Order No. 2226-99]

RIN 1105-AA65

Office of the Attorney General; Designation of Agencies To Receive and Investigate Reports Required Under the Protection of Children From Sexual Predators Act

AGENCY: Department of Justice.

ACTION: Proposed rule.

SUMMARY: This proposed rule is intended to carry out the Attorney General's responsibilities under the child pornography reporting provisions of the Protection of Children from Sexual Predators Act of 1998 (PCSPA). The PCSPA requires providers of an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce, to report incidents of child pornography, as defined by section 2251, 2251A, 2252, 2252A, or 2260 of title 18, United States Code, to the appropriate Federal agency. In order to facilitate effective reporting, the PCSPA requires the Attorney General to designate ``a law enforcement agency or agencies'' to receive and investigate such reports of child pornography. This proposed rule sets forth the Attorney General's proposed designations and certain other matters covered by the PCSPA's reporting requirements.

DATES: Written comments must be submitted on or before July 26, 1999.

ADDRESSES: Please submit written comments, in triplicate, to the Chief, Child Exploitation and Obscenity Section, Criminal Division, Department

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of Justice, 1331 F Street, NW, Suite 600, Washington, DC 20530. Comments are available for public inspection at the above address by calling (202) 514-5780 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Terry R. Lord, Chief, Child Exploitation and Obscenity Section, Criminal Division, (202) 514-5780, or in writing at 1331 F Street, NW, Suite 600, Washington, DC 20530.

SUPPLEMENTARY INFORMATION: The child pornography reporting provisions of the Protection of Children from Sexual Predators Act (PCSPA) were enacted as Section 604 of the Act, Public Law 105-314, 112 Stat. 2974, codified at 42 U.S.C. 13032, and 18 U.S.C. 2702(b)(6). As set forth at 42 U.S.C. 13032, the PCSPA requires providers of electronic communication services or remote computing services to the public, through a facility or means of interstate or foreign commerce, who obtain knowledge of facts or circumstances from which a violation of sections 2251, 2251A, 2252, 2252A, or 2260 of title 18, United States Code, involving child pornography, as defined in section 2256 of title 18, United States Code, is apparent, to make a report of such facts or circumstances to a law enforcement agency or agencies designated by the Attorney General. Set forth below for public comment is the proposed rule promulgating the Attorney General's designation of the agencies to receive and investigate these reports of child pornography. Under the proposed rule, reports of child pornography made pursuant to 42 U.S.C. 13032 are to be submitted to the Federal agencies that currently have jurisdiction to investigate reports of child pornography on electronic communication services or remote computing services.

Regulatory Flexibility Act

The Attorney General in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities. Rather than requiring the costly submission of a written report and accompanying evidence to the FBI or U.S. Customs Service, the proposed regulation requires that the electronic communication service or remote computing service notify the FBI or U.S. Customs Service by telephone, either to a local office or an ``800'' number, or by a special Internet tip line operated by the agencies. In this manner, the proposed regulation complies with the reporting statute, while limiting the service provider's costs as much as possible.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, Sec. 1(b), Principles of Regulation. The Department of Justice has determined that this rule is not a ``significant regulatory action'' under Sec. 3(f) of Executive Order 12866, Regulatory Planning and Review because it will have an annual effect on the economy of less than $100 million. As noted, the costs of compliance for the electronic communications and remote computing service industry have been limited to the costs of a telephonic report. Accordingly, this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12612

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Plain Language Instructions

We try to write clearly. If you suggest how to improve the clarity of these regulations, call or write Terry R. Lord, Chief, Child Exploitation and Obscenity Section, Criminal Division, 1331 F Street, NW, Suite 600, Washington, DC 20530, (202) 514-5780.

List of Subjects in 28 CFR Part 81

Child abuse, Federal buildings and facilities, Child pornography, Electronic communication services, Remote computing services.

By virtue of the authority vested in me as Attorney General, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, 42 U.S.C. 13032, and Public Law 105-314, 112 Stat. 2974, Part 81 of title 28, Code of Federal Regulations, is proposed to be amended as follows:

PART 81--CHILD ABUSE AND CHILD PORNOGRAPHY REPORTING DESIGNATIONS AND PROCEDURES

1. The heading for Part 81 is revised as set forth above.

2. The authority citation for Part 81 is revised to read as follows:

   Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031, 13032.

3. Sections 81.1 through 81.5 are designated as subpart A and a new subpart heading is added to read as follows:

   Subpart A--Child Abuse Reporting Designations and Procedures

4. Section 81.1 is amended by removing the words ``this part'' and inserting in their place ``this subpart A.''

5. Part 81 is amended by adding at the end thereof the following new subpart B to read as follows:

   Subpart B--Child Pornography Reporting Designations and Procedures

   Sec. 81.11 Purpose. 81.12 Submission of reports; designation of agencies in cases where identifying information about the perpetrator is known. 81.13 Designation of FBI and United States Customs Service in cases where the identity of the perpetrator is unknown. 81.14 Contents of report; no duty to develop additional information or monitor customer use or content. 81.15 Definitions.

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   Sec. 81.11 Purpose.

   The regulations in this subpart B designate the agencies that are authorized to receive and investigate reports of child pornography under the provisions of 42 U.S.C. 13032.

   Sec. 81.12 Submission of reports; designation of agencies in cases where identifying information about the perpetrator is known.

   Where the provider of the electronic communication service or remote computing service to the public learns of information concerning a violation of federal child pornography statutes, as defined by section 2251, 2251A, 2252, 2252A, or 2260 of title 18, United States Code, it shall report the violation, as required by 42 U.S.C. 13032, to the Federal Bureau of Investigation or the United States Customs Service. If the provider knows the location of the perpetrator, it shall report the violation to the Federal Bureau of Investigation in the state where the perpetrator lives. If the provider knows that the perpetrator is located in a foreign country, it shall report the violation to the United States Customs Service. The Federal Bureau of Investigation and the United States Customs Service are hereby respectively designated as the agency to receive and investigate such reports, pursuant to 42 U.S.C. 13032(b)(2).

   Sec. 81.13 Designation of Federal Bureau of Investigation and United States Customs Service in cases where the identity of the perpetrator is unknown.

   For cases where the identity of the perpetrator is unknown, the Federal Bureau of Investigation is hereby designated as the agency to receive and investigate reports of child pornography made pursuant to 42 U.S.C. 13032. For cases where the identity of the perpetrator is unknown, but the items of child pornography are believed to be of foreign origin, the United States Customs Service is designated as the agency to receive and investigate reports of child pornography made pursuant to 42 U.S.C. 13032. The provider shall report the violation to the Federal Bureau of Investigation or the United States Customs Service in the state where the provider is located.

   Sec. 81.14 Contents of report; no duty to develop additional information or monitor customer use or content.

   (a) The provider shall report whatever information it obtained that led it to conclude that a violation of federal child pornography statutes, as defined by section 2251, 2251A, 2252, 2252A, or 2260 of title 18, United States Code, has occurred. The report could include information concerning: visual depictions of child pornography; the identity of persons or screen names of persons transmitting or receiving child pornography; or requests by persons to receive child pornography. Although not required, the report may include additional information or material developed by the provider. However, this does not require a provider of electronic communication services or remote computing services to engage in the monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person.

   (b) The report to the Federal Bureau of Investigation may be made telephonically to the local number for the FBI, which can be retrieved from the Web site ``www.FBI.gov.'' The report to the U.S. Customs Service may be made telephonically by calling the local number for the U.S. Customs Service or by calling ``1-800-BE ALERT.''

   (c) Providers are advised to consult the requirements of the Electronic Communications Privacy Act of 1986, Public Law 99-508, 100 Stat. 1848, which enacted sections 1367, 2521, 2701 to 2710, 3117, and 3121 to 3126 of title 18, United States Code, and amended section 2510 and sections 2232, 2511 to 2513, and 2516 to 2520 of title 18, United States Code.

   Sec. 81.15 Definitions.

   The term ``child pornography'' has the meaning given the term in section 2256 of title 18, United States Code. The term ``electronic communication service'' has the meaning given the term in section 2510 of title 18, United States Code; and the term ``remote computing service'' has the meaning given the term in section 2711 of title 18, United States Code.

   Dated: May 20, 1999. Janet Reno, Attorney General.

   [FR Doc. 99-13427Filed5-25-99; 8:45 am]

   BILLING CODE 4410-14-M