The PROTECT Act of 2003 (Pub.L. 108-21, 117 Stat. 650, S. 151, enacted April 30, 2003) is a United States law with the stated intent of preventing child abuse.[1][2] "PROTECT" is a "backronym" which stands for "Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today".
The PROTECT Act incorporates the Truth in Domain Names Act (TDNA) of 2003 (originally two separate Bills, submitted by Senator Orrin Hatch and Congressman Mike Pence), codified at 18 U.S.C. § 2252(B)(b).[3]
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The law has the following effects:[1][4]
For the purposes of this law, illicit sexual conduct includes commercial sex with anyone under 18,[6] and non-commercial sex with persons under 16 when there is at least a four-year age difference or the person is under 12 years of age.[2][7][8][9] Previous US law was less strict, only punishing those having sex either in contravention of local laws OR in commerce (prostitution); but did not prohibit non-commercial sex with, for example, a 14 year-old if such sex was legal in the foreign territory.
The PROTECT Act mandated that the United States Attorney General promulgate new regulations to enforce the 2257 recordkeeping regulation, colloquially known as the '2257 Regulations'. The Free Speech Coalition has filed a lawsuit against the United States Department of Justice claiming the 2257 Regulations are unconstitutional.
The PROTECT Act includes prohibitions against illustrations depicting child pornography, including computer-generated illustrations, also known as virtual child pornography.[1][2][4] Provisions against virtual child pornography in the Child Pornography Prevention Act of 1996 had been ruled unconstitutional by the U.S. Supreme Court in 2002. However, the provisions of the Protect Act are distinct, since they establish the requirement of showing obscenity as defined by the Miller Test, which was not an element of the 1996 law.
The act was signed into law by President George W. Bush on April 30, 2003.[10]
On April 6, 2006, in United States v. Williams, the Eleventh Circuit Court of Appeals ruled that one component of the PROTECT ACT, the "pandering provision" codified at 18 U.S.C. § 2252A(a)(3)(B) of the United States Code, violated the First Amendment. The "pandering provision" conferred criminal liability on anyone who knowingly
advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.
The Williams court held that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment. Accordingly, § 2252A(a)(3)(B) was held to be unconstitutionally overbroad. The Eleventh Circuit further held that the law was unconstitutionally vague, in that it did not adequately and specifically describe what sort of speech was criminally actionable.
The Department of Justice appealed the Eleventh Circuit's ruling to the U.S. Supreme Court. The Supreme Court reversed the Eleventh Circuit's ruling in May 2008 and upheld this portion of the act.[11]
The first conviction of a person found to have violated the sections of the act relating to virtual child pornography, Dwight Whorley of Virginia, was upheld in a 2-1 panel decision of the Fourth Circuit Court of Appeals in December 2008.[12] This was in apparent contradiction to a previous U.S. Supreme Court ruling that stated virtual child pornography was protected free speech.