[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4569 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 4569
To require covered platforms to remove nonconsensual intimate visual
depictions, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 18, 2024
Mr. Cruz (for himself, Ms. Klobuchar, Mrs. Capito, Mr. Blumenthal, Ms.
Lummis, Ms. Rosen, Mr. Budd, Ms. Butler, Mr. Young, Mr. Manchin, Mr.
Cassidy, Mr. Hickenlooper, Mr. Heinrich, and Mr. Barrasso) introduced
the following bill; which was read twice and referred to the Committee
on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To require covered platforms to remove nonconsensual intimate visual
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 ``Tools to Address Known Exploitation
by Immobilizing Technological Deepfakes on Websites and Networks Act''
or the ``TAKE IT DOWN Act''.
SEC. 2. CRIMINAL PROHIBITION ON INTENTIONAL DISCLOSURE OF NONCONSENSUAL
INTIMATE VISUAL DEPICTIONS.
(a) In General.--Section 223 of the Communications Act of 1934 (47
U.S.C. 223) is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following:
``(h) Intentional Disclosure of Nonconsensual Intimate Visual
Depictions.--
``(1) Definitions.--In this subsection:
``(A) Consent.--The term `consent' means an
affirmative, conscious, and voluntary authorization
made by an individual free from force, fraud, duress,
misrepresentation, or coercion.
``(B) Deepfake.--The term `deepfake' means a video
or image that is generated or substantially modified
using machine-learning techniques or any other
computer-generated or machine-generated means to
falsely depict an individual's appearance or conduct
within an intimate visual depiction.
``(C) Identifiable individual.--
``(i) In general.--The term `identifiable
individual' means an individual--
``(I) who appears in whole or in
part in an intimate visual depiction;
and
``(II) whose face, likeness, or
other distinguishing characteristic
(including a unique birthmark or other
recognizable feature) is displayed in
connection with such intimate visual
depiction.
``(ii) Appears.--For purposes of clause
(i), an individual appears in an intimate
visual depiction if--
``(I) the individual is actually
the individual identified in the
intimate visual depiction; or
``(II) a deepfake of the individual
is used to realistically depict the
individual such that a reasonable
person would believe the individual is
actually depicted in the intimate
visual depiction.
``(D) Interactive computer service.--The term
`interactive computer service' has the meaning given
the term in section 230.
``(E) Intimate visual depiction.--The term
`intimate visual depiction' has the meaning given such
term in section 1309 of the Consolidated Appropriations
Act, 2022 (15 U.S.C. 6851).
``(F) Minor.--The term `minor' means any individual
under the age of 18 years.
``(2) Offense.--
``(A) Involving adults.--Except as provided in
subparagraph (C), it shall be unlawful for any person,
in interstate or foreign commerce, to use an
interactive computer service to knowingly publish an
intimate visual depiction of an identifiable individual
who is not a minor if--
``(i) the intimate visual depiction was
obtained or created under circumstances in
which the person knew or reasonably should have
known the identifiable individual had a
reasonable expectation of privacy;
``(ii) what is depicted was not voluntarily
exposed by the identifiable individual in a
public or commercial setting;
``(iii) what is depicted is not a matter of
public concern; and
``(iv) publication of the intimate visual
depiction--
``(I) is intended to cause harm; or
``(II) causes harm, including
psychological, financial, or
reputational harm, to the identifiable
individual.
``(B) Involving minors.--Except as provided in
subparagraph (C), it shall be unlawful for any person,
in interstate or foreign commerce, to use an
interactive computer service to knowingly publish an
intimate visual depiction of an identifiable individual
who is a minor with intent to--
``(i) abuse, humiliate, harass, or degrade
the minor; or
``(ii) arouse or gratify the sexual desire
of any person.
``(C) Exceptions.--Subparagraphs (A) and (B) shall
not apply to--
``(i) a lawfully authorized investigative,
protective, or intelligence activity of--
``(I) a law enforcement agency of
the United States, a State, or a
political subdivision of a State; or
``(II) an intelligence agency of
the United States;
``(ii) a disclosure made reasonably and in
good faith--
``(I) to a law enforcement officer
or agency;
``(II) as part of a document
production or filing associated with a
legal proceeding;
``(III) as part of medical
education, diagnosis, or treatment or
for a legitimate medical, scientific,
or education purpose; or
``(IV) in the reporting of unlawful
content or unsolicited or unwelcome
conduct or in pursuance of a legal,
professional, or other lawful
obligation; or
``(V) to seek support or help with
respect to the receipt of an
unsolicited intimate visual depiction;
``(iii) a disclosure reasonably intended to
assist the identifiable individual; or
``(iv) a person who possesses or publishes
an intimate visual depiction of himself or
herself engaged in nudity or sexually explicit
conduct (as that term is defined in section
2256(2)(A) of title 18, United States Code).
``(3) Penalties.--
``(A) Offenses involving adults.--Any person who
violates paragraph (2)(A) shall be fined under title
18, United States Code, imprisoned not more than 2
years, or both.
``(B) Offenses involving minors.--Any person who
violates paragraph (2)(B) shall be fined under title
18, United States Code, imprisoned not more than 3
years, or both.
``(4) Rules of construction.--For purposes of paragraph
(2)--
``(A) the fact that the identifiable individual
provided consent for the creation of the intimate
visual depiction shall not establish that the
individual provided consent for the publication of the
intimate visual depiction; and
``(B) the fact that the identifiable individual
disclosed the intimate visual depiction to another
individual shall not establish that the identifiable
individual provided consent for the publication of the
intimate visual depiction by the person alleged to have
violated paragraph (2).
``(5) Threats.--Any person who intentionally threatens to
commit an offense under paragraph (2) for the purpose of
intimidation, coercion, extortion, or to create mental distress
shall be punished as provided in paragraph (3).
``(6) Forfeiture.--
``(A) In general.--The court, in imposing a
sentence on any person convicted of a violation of
subparagraph (2), shall order, in addition to any other
sentence imposed and irrespective of any provision of
State law, that the person forfeit to the United
States--
``(i) any material distributed in violation
of that paragraph;
``(ii) the person's interest in property,
real or personal, constituting or derived from
any gross proceeds of the violation, or any
property traceable to such property, obtained
or retained directly or indirectly as a result
of the violation; and
``(iii) any personal property of the person
used, or intended to be used, in any manner or
part, to commit or to facilitate the commission
of the violation.
``(B) Procedures.--Section 413 of the Controlled
Substances Act (21 U.S.C. 853), with the exception of
subsections (a) and (d), shall apply to the criminal
forfeiture of property under subparagraph (A).
``(7) Restitution.--The court shall order restitution for
an offense under paragraph (2) in the same manner as under
section 2264 of title 18, United States Code.''.
(b) Defenses.--Section 223(e)(1) of the Communications Act of 1934
(47 U.S.C. 223(e)(1)) is amended by striking ``or (d)'' and inserting
``, (d), or (h)''.
(c) Technical and Conforming Amendment.--Subsection (i) of section
223 of the Communications Act of 1934 (47 U.S.C. 223), as so
redesignated by subsection (a), is amended by inserting
``Definitions.--'' before ``For purposes of this section''.
SEC. 3. NOTICE AND REMOVAL OF NONCONSENSUAL INTIMATE VISUAL DEPICTIONS.
(a) In General.--
(1) Notice and removal process.--
(A) Establishment.--Not later than 1 year after the
date of enactment of this Act, a covered platform shall
establish a process whereby an identifiable individual
(or an authorized representative of such individual)
may--
(i) notify the covered platform of an
intimate visual depiction published on the
covered platform that--
(I) includes a depiction of the
identifiable individual; and
(II) was published without the
consent of the identifiable individual;
and
(ii) submit a request for the covered
platform to remove such intimate visual
depiction.
(B) Requirements.--A notification and request for
removal of an intimate visual depiction submitted under
the process established under subparagraph (A) shall
include, in writing--
(i) a physical or electronic signature of
the identifiable individual (or an authorized
representative of such individual);
(ii) an identification of the intimate
visual depiction of the identifiable
individual; and
(iii) a brief statement that the
identifiable individual has a good faith belief
that any intimate visual depiction identified
under clause (ii) is not consensual, including
any relevant information for the covered
platform to determine the intimate visual
depiction was published without the consent of
the identifiable individual.
(2) Notice of process.--A covered platform shall provide on
the platform a clear and conspicuous notice of the notice and
removal process established under paragraph (1)(A).
(3) Removal of nonconsensual intimate visual depictions.--
Upon receiving a valid removal request from an identifiable
individual (or an authorized representative of such individual)
using the process described in paragraph (1)(A)(ii), a covered
platform shall remove the intimate visual depiction and make
reasonable efforts to remove any identical copies of such
depiction as soon as possible, but not later than 48 hours
after receiving such request.
(4) Limitation on liability.--A covered platform shall not
be liable for any claim based on the covered platform's good
faith disabling of access to, or removal of, material claimed
to be a nonconsensual intimate visual depiction based on facts
or circumstances from which the unlawful publishing of an
intimate visual depiction is apparent, regardless of whether
the intimate visual depiction is ultimately determined to be
unlawful or not.
(b) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
this section shall be treated as a violation of a rule defining
an unfair or a deceptive act or practice under section
18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)).
(2) Powers of the commission.--
(A) In general.--Except as provided in subparagraph
(D), the Commission shall enforce this section in the
same manner, by the same means, and with the same
jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated
into and made a part of this section.
(B) Privileges and immunities.--Any person who
violates this Act shall be subject to the penalties and
entitled to the privileges and immunities provided in
the Federal Trade Commission Act (15 U.S.C. 41 et
seq.).
(C) Authority preserved.--Nothing in this Act shall
be construed to limit the authority of the Federal
Trade Commission under any other provision of law.
(D) Scope of jurisdiction.--Notwithstanding
sections 4, 5(a)(2), or 6 of the Federal Trade
Commission Act (15 U.S.C. 44, 45(a)(2), 46), or any
jurisdictional limitation of the Commission, the
Commission shall also enforce this section in the same
manner provided in subparagraph (A), with respect to
organizations that are not organized to carry on
business for their own profit or that of their members.
SEC. 4. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Consent; deepfake; identifiable individual; intimate
visual depiction.--The terms ``consent'', ``deepfake'',
``identifiable individual'', ``intimate visual depiction'', and
``minor'' have the meaning given such terms in section 223(h)
of the Communications Act of 1934 (47 U.S.C. 223), as added by
section 2.
(3) Covered platform.--
(A) In general.--The term ``covered platform''
means a website, online service, online application, or
mobile application that--
(i) serves the public; and
(ii) primarily provides a forum for user-
generated content, including messages, videos,
images, games, and audio files.
(B) Exclusions.--The term ``covered platform''
shall not include the following:
(i) A provider of broadband internet access
service (as described in section 8.1(b) of
title 47, Code of Federal Regulations, or
successor regulation).
(ii) Electronic mail.
(iii) An online service, application, or
website--
(I) that consists primarily of
content that is not user generated but
is preselected by the provider of such
online service, application, or
website; and
(II) for which any chat, comment,
or interactive funct