[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 146 Engrossed in Senate (ES)]
<DOC>
119th CONGRESS
1st Session
S. 146
_______________________________________________________________________
AN ACT
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) Digital forgery.--The term `digital forgery'
means any intimate visual depiction of an identifiable
individual created through the use of software, machine
learning, artificial intelligence, or any other
computer-generated or technological means, including by
adapting, modifying, manipulating, or altering an
authentic visual depiction, that, when viewed as a
whole by a reasonable person, is indistinguishable from
an authentic visual depiction of the individual.
``(C) Identifiable individual.--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.
``(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 involving authentic intimate visual
depictions.--
``(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;
``(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;
``(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); or
``(v) the publication of an intimate visual
depiction that constitutes--
``(I) child pornography (as that
term is defined in section 2256 of
title 18, United States Code); or
``(II) a visual depiction described
in subsection (a) or (b) of section
1466A of title 18, United States Code
(relating to obscene visual
representations of the sexual abuse of
children).
``(3) Offense involving digital forgeries.--
``(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 a
digital forgery of an identifiable individual who is
not a minor if--
``(i) the digital forgery was published
without the consent of the identifiable
individual;
``(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 digital forgery--
``(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 a
digital forgery 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;
``(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;
``(iv) a person who possesses or publishes
a digital forgery 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); or
``(v) the publication of an intimate visual
depiction that constitutes--
``(I) child pornography (as that
term is defined in section 2256 of
title 18, United States Code); or
``(II) a visual depiction described
in subsection (a) or (b) of section
1466A of title 18, United States Code
(relating to obscene visual
representations of the sexual abuse of
children).
``(4) Penalties.--
``(A) Offenses involving adults.--Any person who
violates paragraph (2)(A) or (3)(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) or (3)(B) shall be fined
under title 18, United States Code, imprisoned not more
than 3 years, or both.
``(5) Rules of construction.--For purposes of paragraphs
(2) and (3)--
``(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) or (3), respectively.
``(6) Threats.--
``(A) Threats involving authentic intimate visual
depictions.--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 (4).
``(B) Threats involving digital forgeries.--
``(i) Threats involving adults.--Any person
who intentionally threatens to commit an
offense under paragraph (3)(A) for the purpose
of intimidation, coercion, extortion, or to
create mental distress shall be fined under
title 18, United States Code, imprisoned not
more than 18 months, or both.
``(ii) Threats involving minors.--Any
person who intentionally threatens to commit an
offense under paragraph (3)(B) for the purpose
of intimidation, coercion, extortion, or to
create mental distress shall be fined under
title 18, United States Code, imprisoned not
more than 30 months, or both.
``(7) Forfeiture.--
``(A) In general.--The court, in imposing a
sentence on any person convicted of a violation of
paragraph (2) or (3), 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).
``(8) Restitution.--The court shall order restitution for
an offense under paragraph (2) or (3) in the same manner as
under section 2264 of title 18, United States Code.
``(9) Rule of construction.--Nothing in this subsection
shall be construed to limit the application of any other
relevant law, including section 2252 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 person acting on behalf 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
person acting on behalf of such individual);