The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Appropriations
BILL: CS/CS/SB 1798
INTRODUCER: Appropriations Committee; Criminal Justice Committee; and Senator Book
SUBJECT: Sexually Related Offenses
DATE: March 2, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stokes Jones CJ Fav/CS
2. Moody Cox CF Favorable
3. Atchley Sadberry AP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1798 creates section 836.13, Florida Statutes, to provide criminal and civil penalties
for persons who promote certain altered sexual depictions. Colloquially known as “deep fakes,”
these images often depict individuals engaging in sexual behavior that they did not engage in.
Specifically, this bill provides that a person commits a third degree felony when he or she
willfully and maliciously promotes any altered sexual depiction of an identifiable person,
without the consent of the identifiable person, and who knows or reasonably should have known
that such visual depiction was an altered sexual depiction.
The bill also creates section 836.14, Florida Statutes, to provide criminal and civil penalties
relating to theft or unauthorized promotion of a sexually explicit image. A person commits a
third degree felony when he or she:
 Commits a theft of a sexually explicit image with the intent to promote such image; or
 Willfully possesses with the intent to promote a sexually explicit image that he or she knows
or should have known was obtained in violation of the offense described above.
The bill provides a higher penalty, a second degree felony, when a person willfully promotes for
the purpose of pecuniary or any type of financial gain a sexually explicit image of an identifiable
person without that person’s consent.
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Additionally, the felony offenses created in this bill are ranked in the offense severity ranking
chart of the Criminal Punishment Code.
The bill, throughout the Florida Statutes, replaces the term “child pornography,” with “child
sexual abuse material.” The bill expands this term to include any image that has been created,
altered, adapted, or modified by electronic, mechanical, or other means, to portray an identifiable
minor engaged in sexual conduct.
The bill further amends s. 827.071, F.S., to replace the phrase “any sexual conduct by a child,”
with the term “child sexual abuse material.” The term “child sexual abuse material,” includes
images depicting any sexual conduct by a child.
The bill amends s. 775.0847, F.S., to replace the term “movie” with “motion picture, film, video,
or computer-generated motion picture, film, or video,” for purposes of enhancing specified
offenses relating to child sexual abuse material or obscenity.
The bill increases the minimum monetary damages from $5,000 to $10,000 that a victim of
sexual cyberharassment may receive as a result of a civil action.
The bill provides that a law enforcement officer may arrest without a warrant any person who he
or she has probable cause to believe possesses a child-like sex doll.
The bill amends s. 828.126, F.S., to remove the term “sexual conduct” and revise the term
“sexual contact with an animal,” to encompass acts previously defined under “sexual conduct.”
The bill amends the prohibited conduct to include that a person may not knowingly: advertise,
offer, solicit, or accept an offer of an animal for the purpose of sexual contact with such animal;
or film, distribute, or possess any pornographic image or video of a person and an animal
engaged in any prohibited acts related to sexual activities involving an animal.
The bill increases the penalty for sexual contact with an animal from a first degree misdemeanor
to a third degree felony, and provides that the court must issue an order prohibiting a convicted
person from specified behaviors that place them in close proximity to an animal. The bill also
provides exceptions from criminal liability. This offense is ranked in the offense severity ranking
chart of the Criminal Punishment Code.
Additionally, the bill provides conforming cross-references.
The bill may have a positive indeterminate fiscal impact (unquantifiable increase in prison beds
and jail beds) on the Department of Corrections and local jails. See Section V. Fiscal Impact
Statement.
The bill is effective October 1, 2022.
BILL: CS/CS/SB 1798 Page 3
II. Present Situation:
With technology advancing at a rapid rate, states and the federal government are attempting to
craft laws to address issues arising as a result of such technology. Many of these issues relate to
the creation or dissemination of sexually explicit material including, nonconsensual pornography
of adults, sexually explicit deep fake images of adults, and morphed child pornography.
Deep Fakes
Deep fakes are realistic images or videos that are created using artificial intelligence (AI) and
often depict a real person saying something they did not say, or engaging in a behavior they did
not engage in. The use of AI to generate a deep fake image is causing concern because the results
are increasingly realistic, rapidly created, and inexpensively made. Software to create such
images is often free and publicly available.1
While there may be beneficial uses, deep fake technology may also pose a harm to individuals.
Deep fakes may be used to spread false information, or used to embarrass, humiliate, exploit, or
sabotage others.2
Legislation in Other States
Several states provide criminal or civil liability for creating or distributing deep fake images. The
states that have enacted laws relating to deep fake images include: Virginia,3 Hawaii,4
California,5 and Texas.6
Currently, no states completely ban the creation or distribution of all deep fakes. A complete ban
of such images would likely run afoul of constitutional protections under the First Amendment.
However, certain categories of speech, including defamation, fraud, true threats, and the
imminent-and likely incitement of violence, do not receive protections under the First
Amendment.7 Some deep fakes will likely fall into one of those categories and therefore may be
regulated.8
The potential for harm stemming from deep fake images is often explored in the context of
nonconsensual deep fake pornography. “The core issue of nonconsensual pornography is
consent, and deep fake pornography adds an additional layer because the individual depicted did
not actually engage in the sexual behavior [he or she] is depicted as doing.”9
1
In Focus, Congressional Research Service, Deep Fakes and National Security, June 8, 2021, available at
https://crsreports.congress.gov/product/pdf/IF/IF11333 (last visited February 28, 2022).
2
California Law Review, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, Bobby
Chesney and Danielle Citron, 2019 Vol. 107:1753, p. 1771-74, (on file with Senate Criminal Justice Committee).
3
Section 18.2-386.2., V.A.C.
4
Section 711-1110.9., H.R.S.
5
Section 1708.86., C.C.C.
6
Section 255.004, V.T.C.A.
7
United States v. Alvarez, 567 U.S. 709 (2012).
8
California Law Review, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, Bobby
Chesney and Danielle Citron, 2019 Vol. 107:1753, p. 1791, (on file with Senate Criminal Justice Committee).
9
Northwestern University Law Review, Deepfake Privacy: Attitudes and Regulation, Mathew B. Kugler and Carly Pace,
2021Vol 116:611, p. 624-25, (on file with Senate Criminal Justice Committee).
BILL: CS/CS/SB 1798 Page 4
Nonconsensual Pornography
Many states, including Florida, ban nonconsensual pornography, otherwise known as “revenge
porn.” Such bans have been consistently upheld by the courts.10 The courts have found a
compelling state interest in protecting individuals from the nonconsensual dissemination of
private sexual images. “Those who are unwillingly exposed to their friends, family, bosses, co-
workers, teachers, fellow students, or random strangers on the internet are often deeply and
permanently scarred by the experience.”11
Section 784.049, F.S., provides that sexual cyberharassment means to publish to an Internet
website or disseminate through electronic means to another person a sexually explicit image of a
person that contains or conveys the personal identification information of the depicted person
without the depicted person’s consent, contrary to the depicted person’s reasonable expectation
that the image would remain private, for no legitimate purpose, with the intent of causing
substantial emotional distress to the depicted person.
It is a first degree misdemeanor12 to willfully and maliciously sexually cyberharass another
person. A second or subsequent violation is a third degree felony.13 In addition to criminal
penalties, an aggrieved person may initiate a civil action to obtain injunctive relief, a minimum
of $5,000 in monetary damages, and reasonable attorney fees and costs.14
There is currently no state law prohibiting the unlawful procuring, or possession of a sexually
explicit image with the intent of selling or disseminating such image. Such crimes in Florida may
only be charged under current theft15 laws if applicable.
Child Pornography
Generally, the First Amendment does not protect child pornography. In New York v. Ferber,16
the Supreme Court of the United States recognized that states have a compelling interest in
safeguarding the physical and psychological well-being of minors and in preventing their sexual
exploitation and abuse. The Court noted that it was “unlikely that visual depictions of children . .
. lewdly exhibiting their genitals would often constitute an important and necessary part of a
literary performance or scientific or educational work.”17
The use of AI has also been used to create child pornography, sometimes referred to as
“morphing.” The Federal Government prohibits such images, however, the Supreme Court of the
10
See Minnesota v. Casillas, 952 N.W. 2d 629, 642 (Minnesota 2020); Vermont v. VanBuren, 210 Vt. 293 (Vermont 2019);
Illinois v. Austin, 2019 IL 123910, (Illinois 2019).
11
Minnesota v. Casillas, 952 N.W. 2d 629, 642 (Minnesota 2020).
12
A first degree misdemeanor is punishable by up to a year in county jail and a fine not exceeding $1,000. Sections 775.082
and 775.083, F.S.
13
Section 784.049(3), F.S. A third degree felony is punishable by up to five years imprisonment and up to a $5,000 fine.
Sections 775.082 and 775.083, F.S.
14
Section 784.049(5), F.S.
15
See ch. 812, F.S.
16
New York v. Ferber, 458 U.S. 747 (1982).
17
Id. at 763.
BILL: CS/CS/SB 1798 Page 5
United States has found that the child or minor depicted in the image must be a real minor for
such bans to pass constitutional muster.18 Under these principles, states have constitutionally
been able to criminalize the possession, distribution, etc., of child pornography. However, the
constitutionality of criminalizing such acts is less clear when the images at issue are morphed
pornography.
Child Pornography Prevention Action of 1996
In 1996, Congress passed the Child Pornography Prevention Action of 1996 (CPPA),19 which
created a definition of “child pornography.” This criminalized, for the first time, acts relating to
morphed child pornography. Under the CPPA, “child pornography” was defined as:
(8) Any visual depiction, including any photograph, film, video, picture,
or computer or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of sexually
explicit conduct,20 where:
(A) The production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct;
(B) Such visual depiction is, or appears to be, of a minor engaging in
sexually explicit conduct (i.e., virtual child pornography – created
without using an actual child);
(C) Such visual depiction has been created, adapted, or modified to appear
that an identifiable minor21 is engaging in sexually explicit conduct
(i.e., morphed child pornography); or
(D) Such visual depiction is advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression that the
material is or contains a visual depiction of a minor engaging in
sexually explicit conduct.22
In 2002, the United States Supreme Court decided Ashcroft v. Free Speech Coalition,23 a case in
which a California trade association for the adult-entertainment industry challenged section
2256(8)(B) of the CPPA as unconstitutionally overbroad. As noted above, section 2256(8)(B)
made it a crime to possess or distribute images depicting a child or what appears to be a child,
engaging in sexually explicit conduct (i.e., virtual child pornography).24
18
See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
19
Pub. L. No. 104-208, s. 121.
20
The term “sexually explicit conduct” was defined as actual or simulated sexual intercourse (including genital-genital, oral-
genital, anal-genital, or oral-anal) whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or
masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person. 18 U.S.C. s. 2256(2) (1996 ed.).
21
The term “identifiable minor” was defined as a person who is recognizable as an actual person by the person’s face,
likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, and: who was a
minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating,
adapting, or modifying the visual depiction. The term was not be construed to require proof of the actual identity of the
identifiable minor. 18 U.S.C. s. 2556(9) (1996 ed.).
22
18 U.S.C. s. 2556(8) (1996 ed.).
23
535 U.S. 234 (2002).
24
18 U.S.C. s. 2556(8) (1996 ed.).
BILL: CS/CS/SB 1798 Page 6
The Court held that the “speech” criminalized in the challenged provision of the CPPA violated
the First Amendment because it extended the federal prohibition against child pornography to
sexually explicit images that appeared to depict minors but were produced without using any real
children.25 The Court decided that by prohibiting child pornography that did not depict an actual
child, section 2256(8)(B) of the CPPA “abridged the freedom to engage in a substantial amount
of lawful speech” and was therefore overbroad and unconstitutional.26
The Ashcroft decision did not specifically address the constitutionality of 18 U.S.C. 2256(8)(C)
(prohibiting morphed child pornography), it did note, in dictum, that “[a]lthough morphed
images may fall within the definition of virtual child pornography, they implicate the interests of
real children. . .”27 Courts have taken this dictum to suggest that the Ashcroft court would have
deemed morphed child pornography as not protected by the First Amendment.28
Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act
(Protect Act)
Congress attempted to remedy the constitutional issues raised in Ashcroft by passing the
“Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act”
(Protect Act) in 2003.29 The Protect Act, in part, narrowed the definition of “virtual” child
pornography in section (8)(B) of the CPPA to include virtual or computer-generated images that
are “indistinguishable from” images of actual minors engaging in sexually explicit conduct.30
Notably, the definition of “morphed” child pornography contained in section 2256(8)(C)
remained unchanged between the CPPA and the Protect Act.
Case Law since the Passage of the Protect Act