[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4409 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 4409
To prohibit the disclosure of intimate digital depictions, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 23, 2024
Ms. Hassan (for herself, Mr. Cornyn, Ms. Butler, and Mr. King)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit the disclosure of intimate digital depictions, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Deepfakes of Intimate
Images Act''.
SEC. 2. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE DIGITAL
DEPICTIONS.
Section 1309 of the Violence Against Women Act Reauthorization Act
of 2022 (15 U.S.C. 6851) is amended--
(1) in the heading, by striking ``images'' and inserting
``depictions'';
(2) in subsection (a)--
(A) by redesignating paragraphs (2), (3), (4), (5),
and (6) as paragraphs (3), (5), (6), (9), and (10),
respectively;
(B) by inserting after paragraph (1) the following:
``(2) Communications service.--The term `communications
service' means--
``(A) a service provided by a person that is a
common carrier, as that term is defined in section 3 of
the Communications Act of 1934 (47 U.S.C. 153), insofar
as the person is acting as a common carrier;
``(B) an electronic communication service, as that
term is defined in section 2510 of title 18, United
States Code;
``(C) an information service, as that term is
defined in section 3 of the Communications Act of 1934
(47 U.S.C. 153); and
``(D) an interactive computer service, as that term
is defined in section 230(f) of the Communications Act
of 1934 (47 U.S.C. 230(f)).'';
(C) by inserting after paragraph (3), as so
redesignated, the following:
``(4) Covered intimate depiction.--The term `covered
intimate depiction' means an intimate visual depiction or an
intimate digital depiction.'';
(D) in paragraph (5), as so redesignated--
(i) by striking ``means'' and inserting the
following--
``(A) with respect to an intimate visual depiction,
means'';
(ii) by striking ``in an intimate visual
depiction'' and inserting ``in the intimate
visual depiction'';
(iii) by striking ``the visual depiction''
and inserting ``the intimate visual
depiction'';
(iv) by striking the period at the end and
inserting ``; and''; and
(v) by adding at the end the following:
``(B) with respect to an intimate digital
depiction, means an individual who, as a result of
digitization or by means of digital manipulation,
appears in whole or in part in the intimate digital
depiction and who is identifiable by virtue of the
individual's face, likeness, or other distinguishing
characteristic, such as a unique birthmark or other
recognizable feature, or from information displayed in
connection with the intimate digital depiction.'';
(E) by inserting after paragraph (6), as so
redesignated, the following:
``(7) Information content provider.--The term `information
content provider' has the meaning given the term in section 230
of the Communications Act of 1934 (47 U.S.C. 230).
``(8) Intimate digital depiction.--The term `intimate
digital depiction' means a realistic visual depiction, as that
term is defined in section 2256(5) of title 18, United States
Code, of an individual that has been created or altered using
digitization or digital manipulation and that depicts--
``(A) the uncovered genitals, pubic area, anus, or
postpubescent female nipple of an identifiable
individual;
``(B) the display or transfer of bodily sexual
fluids--
``(i) onto any part of the body of an
identifiable individual; or
``(ii) from the body of an identifiable
individual; or
``(C) an identifiable individual engaging in
sexually explicit conduct.''; and
(F) in paragraph (9), as so redesignated--
(i) in subparagraph (A)--
(I) in clause (i), by striking
``or'' at the end;
(II) in clause (ii)(I), by adding
``or'' at the end;
(III) by redesignating subclause
(III) of clause (ii) as clause (iii)
and adjusting the margin accordingly;
and
(IV) in clause (iii), as so
redesignated, by striking ``conduct
and'' and inserting ``conduct; and'';
and
(ii) in subparagraph (B)(ii), by inserting
``give'' before ``consent''; and
(3) in subsection (b)--
(A) in paragraph (1)--
(i) in subparagraph (A)--
(I) by inserting after ``whose
intimate visual depiction is
disclosed,'' the following: ``or who is
the subject of an intimate digital
depiction that is disclosed,''; and
(II) by striking ``consented'' and
inserting ``given consent''; and
(ii) in subparagraph (B)--
(I) by striking ``an individual''
and inserting ``a depicted
individual'';
(II) by striking ``the individual''
and inserting ``the depicted
individual'';
(III) by striking ``identifiable
individual's'' and inserting ``depicted
individual's''; and
(IV) by striking ``identifiable
individual's''' and inserting
``depicted individual's'';
(B) in paragraph (2)--
(i) in subparagraph (A)--
(I) by striking ``consented'' each
place it appears and inserting ``gave
consent'';
(II) by inserting ``covered
intimate'' before ``depiction''; and
(III) by striking ``distribution;
and'' and inserting ``disclosure;'';
(ii) by redesignating subparagraph (B) as
subparagraph (C);
(iii) by inserting after subparagraph (A)
the following:
``(B) consent shall be deemed validly given only if
it is set forth in an agreement that--
``(i) is written in plain language signed
knowingly and voluntarily by the depicted
individual; and
``(ii) includes a general description of
the covered intimate depiction and, if
applicable, the audiovisual work into which it
will be incorporated; and''; and
(iv) in subparagraph (C), as so
redesignated--
(I) by striking ``intimate visual''
each place it appears and inserting
``covered intimate''; and
(II) by striking ``person
consented'' and inserting ``individual
gave consent'';
(C) in paragraph (3)(A)--
(i) by striking clause (i) and inserting
the following:
``(i) an individual may recover--
``(I) an amount equal to the
monetary gain made by the defendant
from the disclosure of the covered
intimate depiction;
``(II) either--
``(aa) the actual damages
sustained by the individual as
a result of the disclosure of
the covered intimate depiction,
including damages for emotional
distress; or
``(bb) liquidated damages
in the amount of $150,000;
``(III) punitive damages; and
``(IV) the cost of the action,
including reasonable attorney fees and
other litigation costs reasonably
incurred; and''; and
(ii) in clause (ii), by striking
``visual'';
(D) in paragraph (4)--
(i) in the matter preceding subparagraph
(A), by striking ``An identifiable individual''
and inserting ``A depicted individual'';
(ii) in subparagraph (A), by striking ``an
intimate image'' and inserting ``a covered
intimate depiction'';
(iii) in subparagraph (C), by striking
``public concern or public interest'' and
inserting ``legitimate public concern or public
interest, except that it shall not be
considered a matter of legitimate public
interest or public concern solely because the
depicted individual is a public figure''; and
(iv) in subparagraph (D), by striking
``identifiable individual'' and inserting
``depicted individual''; and
(E) by adding at the end the following:
``(5) In camera.--A court may authorize an in camera
proceeding under this subsection.
``(6) Disclaimers.--It shall not be a defense to an action
under this subsection that there is a disclaimer stating that
the covered intimate depiction of the depicted individual was
unauthorized or that the depicted individual did not
participate in the creation or development of the material.
``(7) Limitations.--For purposes of this subsection, a
provider of a communications service shall not be held liable
on account of--
``(A) any action voluntarily taken in good faith to
restrict access to or availability of a covered
intimate depiction; or
``(B) any action taken to enable or make available
to information content providers or other persons the
technical means to restrict access to a covered
intimate depiction.''.
SEC. 3. CRIMINAL ACTION.
(a) In General.--Chapter 110 of title 18, United States Code, is
amended by inserting after section 2252C the following:
``Sec. 2252D. Disclosure of intimate digital depictions
``(a) Definitions.--
``(1) Definitions of terms defined in civil action
statute.--In this section, the terms `communications service',
`consent', `depicted individual', `disclose', `information
content provider', and `sexually explicit conduct' have the
meanings given those terms in section 1309 of the Violence
Against Women Act Reauthorization Act of 2022 (15 U.S.C. 6851).
``(2) Other terms.--In this section:
``(A) Covered digital depiction.--The term `covered
digital depiction' means--
``(i) an intimate digital depiction; or
``(ii) a digital depiction of a nude minor.
``(B) Digital depiction of a nude minor.--The term
`digital depiction of a nude minor' means any digital
visual depiction (as that term is defined in section
2256(5))--
``(i) of an individual who--
``(I) is recognizable by an
individual other than the depicted
individual from the visual depiction
itself or information or text displayed
in connection with the visual
depiction; and
``(II) was under 18 years of age
when the visual depiction was created;
and
``(ii) in which the anus, genitals, or
pubic area, or post-pubescent female nipple, of
the depicted individual are unclothed, visible,
and displayed in a manner that does not
constitute sexually explicit conduct.
``(C) Intimate digital depiction.--The term
`intimate digital depiction' has the meaning given the
term in section 1309 of the Violence Against Women Act
Reauthorization Act of 2022 (15 U.S.C. 6851), except
that it only includes such a depiction of an individual
who was not less than 18 years of age when the
depiction was created.
``(b) Offenses.--
``(1) Intimate digital depictions.--Except as provided in
paragraph (3), it shall be unlawful to knowingly disclose or
threaten to disclose, through the mail or using any means or
facility of interstate or foreign commerce or affecting
interstate or foreign commerce, an intimate digital depiction
of an individual--
``(A) with knowledge of, or reckless disregard for,
the lack of consent of the depicted individual to the
disclosure of the intimate digital depiction;
``(B) with knowledge of, or reckless disregard for,
the lack of consent of the depicted individual to the
creation of the intimate digital depiction;
``(C) with intent to harass, annoy, threaten,
alarm, or cause substantial harm to the finances or
reputation of the depicted individual; or
``(D) with actual knowledge that, or reckless
disregard for whether, the disclosure or threatened
disclosure will cause physical, emotional,
reputational, or economic harm to the depicted
individual.
``(2) Digital depictions of nude minors.--Except as
provided in paragraph (3), it shall be unlawful to knowingly
mail, or to knowingly distribute using any means or facility of
interstate or foreign commerce or affecting interstate or
foreign commerce, a digital depiction of a nude minor with
intent to abuse, humiliate, harass, or degrade the minor, or to
arouse or gratify the sexual desire of any person.
``(3) Exceptions.--
``(A) Law enforcement, lawful reporting, and other
legal proceedings.--Paragraphs (1) and (2)--
``(i) do not prohibit any lawfully
authorized investigative, protective, or
intelligence activity of a law enforcement
agency of the United States, a State, or a
political subdivision of a State, or of an
intelligence agency of the United States;
``(ii) shall not apply in the case of an
individual acting in good faith to report
unlawful or unsolicited activity or in
pursuance of a legal or professional or other
lawful obligation; and
``(iii) shall not apply in the case of a
good faith and relevant document production or
filing associated with a legal proceeding.
``(B) Service providers.--Paragraphs (1) and (2)
shall not apply to any provider of a communications
service with regard to content provided by another
information content provider, unless--
``(i) in the case of an intimate digital
depiction, the provider of the communications
service distributes the intimate digital
depiction with knowledge of the lack of consent
of the depicted individual; or
``(ii) in the case of a digital depiction
of a nude minor, the provider of the
communications service knowingly distributes
the digital depiction of a nude minor.
``(C) Matters of public concern.--Paragraphs (1)
and (2) shall not apply with respect to a covered