The 2003 PROTECT Act And Safeguarding Children From Sexual Exploitation

October 28, 2021

By Aara Ramesh

On Wednesday, Oct. 27, the Department of Justice (DOJ) announced that a Virginia man, 26-year-old Zackary Ellis Sanders, had been convicted by a federal jury for producing, receiving, and possessing child sexual abuse material (CSAM). The DOJ alleges that Sanders had “engaged in sexual conversations over multiple mobile messaging platforms with at least six different minors.” He was also found to have in his possession further images and videos of the sexual abuse of other children, which he supposedly obtained from the Darkweb. Sanders will be sentenced on March 4 next year, and faces a minimum sentence of 15 years in prison for his crimes.

Unfortunately, Sanders’ case is just one among millions worldwide. Last week, we wrote about the growth in sentencing in the U.S. for those producing CSAM. Between 2005 and 2019, there was a 422% spike in the number of CSAM production offenders sentenced, rising to 512 from 98. The Cyber Tipline of the National Center for Missing and Exploited Children (NCMEC) said that in 2020 it received 21.7 million reports of child sexual abuse imagery, online child exploitation and enticement, child sexual molestation, and child sex trafficking.

Though this problem has undoubtedly worsened since the start of the Covid-19 pandemic, it is not directly attributable to the virus. As one source puts it, “[A]dults have been sexually exploiting children since the dawn of time under the guise of art in paintings, sketches, and other forms of portrayal.” With the invention of the camera in the 19th century, the category of CSAM exploded, though it tended to remain in individual possession, and was rarely published.

It was only with the advent of technology and the internet that the proliferation of CSAM grew out of control. Today, “there is virtually no commercial child pornography sold or produced” in the U.S., i.e., not sold legitimately. Rather, the production, trade, and exchange of such material is criminal and usually happens between private individuals via the internet. 

In today’s piece, we take a look at a landmark piece of legislation enacted in April 2003 to protect children from being sexually exploited — the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act.

Just a reminder: While the legal term for such material is “child pornography,” there is a growing movement to change the name of this category to “child sexual abuse material” because, by virtue of their age, children cannot consent to being part of any pornographic material. As a result, at Biometrica we use the term CSAM.

The first piece of legislation enacted by Congress to thwart the rising tide of CSAM was the Protection of Children Against Sexual Exploitation Act of 1977. It was followed by several other laws in 1984, 1986, 1990, 1996, and 1998, each aiming to close loopholes in the previous iterations that criminals had found to exploit.

Then, in 2003, the PROTECT Act was enacted. The law was crafted, as the DOJ says, to “comprehensively [strengthen] law enforcement’s ability to prevent, investigate, prosecute and punish violent crimes committed against children.” The best way to do this, it was determined, was through coordinated information sharing, fast response times, and sufficiently deterrent punishments.

In looking at violent crimes, officials identified three key problem areas that they hoped the law would address:

  • Law enforcement did not have the tools needed to locate missing children
  • They also did not have the tools necessary to effectively prosecute offenders and federal law did not ensure “adequate or consistent punishment” for such crimes
  • Some legal obstacles have made it difficult to prosecute cases involving child sexual abuse material (CSAM)

As such, the PROTECT Act provided solutions to each of these problems.

The first, and arguably most crucial, was establishing the AMBER Alert Program (AMBER standing for “America’s Missing: Broadcast Emergency Response”). The practice unofficially began in 1996 when 9-year-old Amber Hagerman was kidnapped in Arlington, Texas, while riding her bike and was later found brutally murdered. Dallas-Fort Worth broadcasters teamed up with local law enforcement to develop “an early warning system to help find abducted children.”

It wasn’t until the PROTECT Act, however, that the program was officially codified through the hiring of a dedicated National AMBER Alert Coordinator within the DOJ. Today, the system sends out an urgent bulletin with the support of broadcasters, transportation agencies, law enforcement agencies, and the wireless industry in the gravest child abduction cases.

As of April this year, there were 86 AMBER Plans throughout the U.S. By all measures, the AMBER Alert Program has proven to be quite successful. As per the DOJ, as of July 5, 2021, 1,074 children have been rescued specifically because of the program. In addition, 94 children have been rescued because of Wireless Emergency Alerts. 

As part of the solution, the PROTECT Act also modified some existing legal tools for application in the context of sexual crimes being committed against children, including in laws related to wiretaps; the statute of limitations on the abduction, physical abuse, or sexual abuse of a child; and bail terms for crimes against children.

The second problem area mentioned above was addressed through the establishment of new and more severe penalties for those seeking to harm children. For instance, the minimum prison sentence for a non-family member who abducts a child was raised to 20 years in the PROTECT Act. Similarly, it established a 15–30 year sentence for the first offense of using a child to produce CSAM.

It also established a “two strikes” provision mandating life imprisonment for anyone who is convicted for two serious child sexual abuse offenses. Another gap the law sought to rectify addressed the unusually high rates of recividism in child sexual abuse offenders, by removing the previous five-year cap on post-release supervision of such offenders.

Prior to the PROTECT Act, sentencing in child abuse cases were subject to high rates of “downward departures,” the DOJ says. Ranging from 25–29% nationwide in CSAM possession cases, this term refers to when a judge uses their own discretion to impose lower prison sentences than what the Sentencing Guidelines suggest. Reasons that judges have cited for these reduced sentences include “diminished capacity,” aberrant behavior,” and “family and community ties.”

The third problem area concerns laws against CSAM possession and distribution that are deemed unconstitutional. In particular, the DOJ refers to a specific decision by the Supreme Court that said it was unconstitutional to criminalize the possession of “virtual” CSAM, i.e., CSAM that does not involve real children.

That decision, the DOJ says, made it “immeasurably more difficult” to fight the proliferation of CSAM involving real children. Part of this is because the trafficking of most CSAM today involves digital files, meaning that defendants in such cases can use the Supreme Court’s ruling to sow reasonable doubt as to whether the digital CSAM material involves a real child or not.

Even in 2003, the DOJ said that problem was only likely to worsen as “computer imaging advances.” This may have proved to be truly prescient, as today the tech world grapples with the implications and potential uses of “deepfake” technology, which can be used to transpose the faces of children onto explicit sexual material.

As a result, the PROTECT Act revises and strengthens laws on virtual CSAM, deems illegal any sexually explicit or obscene materials that depict children, and enhances the punishments for those engaging with obscene material involving children, among other measures.

Another clause in the PROTECT Act goes after U.S. citizens or permanent residents who go abroad to sexually exploit a minor. Regardless of whether sex work is legal in any country, the Centers for Disease Control and Prevention (CDC) says that human trafficking, having sex with a minor, and engaging with CSAM are always illegal, and anyone who engaged with these activities in a foreign country can legally be prosecuted in the U.S. after they return. The maximum penalty for such crimes is 30 years in prison.

The CDC says that at least 8,000 Americans have been arrested since the enacting of the PROTECT Act for such crimes. Just yesterday, Oct. 27, the DOJ announced that a man who had multiple prior convictions for offenses against minors was sentenced to 108 months in prison for attempting to sexually molest an 11-year-old boy in Vietnam, where he had lived between March 2003 and his arrest in January 2016.

Overall, even though CSAM convictions and sentences represent only a small minority of all the crimes committed in the U.S. on a daily basis, the problem is more widespread than those numbers would indicate. As the problem mutates and expands, the criminal justice system is also adapting so as to better catch those who would seek to harm society’s most vulnerable.