[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2103 Introduced in Senate (IS)]
105th CONGRESS
2d Session
S. 2103
To provide protection from personal intrusion for commercial purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 20, 1998
Mrs. Feinstein (for herself, Mr. Hatch, and Mrs. Boxer) introduced the
following bill; which was read twice and referred to the Committee on
the Judiciary
_______________________________________________________________________
A BILL
To provide protection from personal intrusion for commercial 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 ``Personal Privacy Protection Act''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) Individuals and their families have been harassed and
endangered by being persistently followed or chased in a manner
that puts them in reasonable fear of bodily injury, and in
danger of serious bodily injury or even death, by
photographers, videographers, and audio recorders attempting to
capture images or other reproductions of their private lives
for commercial purposes.
(2) The legitimate privacy interests of individuals and
their families have been violated by photographers,
videographers, and audio recorders who physically trespass in
order to capture images or other reproductions of their private
lives for commercial purposes, or who do so constructively
through intrusive modern visual or auditory enhancement
devices, such as powerful telephoto lenses and hyperbolic
microphones that enable invasion of private areas that would
otherwise be impossible without trespassing.
(3) Such harassment and trespass threatens not only
professional public persons and their families, but also
private persons and their families for whom personal tragedies
or circumstances beyond their control create media interest.
(4) Federal legislation is necessary to protect individuals
and their families from persistent following or chasing for
commercial purposes that causes reasonable fear of bodily
injury, because such harassment is not directly regulated by
applicable Federal, State, and local statutory or common laws,
because those laws provide an uneven patchwork of coverage, and
because those laws may not cover such activities when
undertaken for commercial purposes.
(5) Federal legislation is necessary to prohibit and
provide proper redress in Federal courts for trespass and
constructive trespass using intrusive visual or auditory
enhancement devices for commercial purposes, because
technological advances such as telephoto lenses and hyperbolic
microphones render inadequate existing common law and State and
local regulation of such trespass and invasion of privacy.
(6) There is no right, under the first amendment to the
Constitution of the United States, to persistently follow or
chase another in a manner that creates a reasonable fear of
bodily injury, to trespass, or to constructively trespass
through the use of intrusive visual or auditory enhancement
devices.
(7) This Act, and the amendments made by this Act, do not
in any way regulate, prohibit, or create liability for
publication or broadcast of any image or information, but
rather use narrowly tailored means to prohibit and create
liability for specific dangerous and intrusive activities that
the Federal Government has an important interest in preventing,
and ensure a safe and secure private realm for individuals
against intrusion, which the Federal Government has an
important interest in ensuring.
(8) This Act protects against unwarranted harassment,
endangerment, invasion of privacy, and trespass in an
appropriately narrowly tailored manner without abridging the
exercise of any rights guaranteed under the first amendment to
the Constitution of the United States, or any other provision
of law.
(9) Congress has the affirmative power under section 8 of
article I of the Constitution of the United States to enact
this Act.
(10) Because this Act regulates only conduct undertaken in
order to create products intended to be and routinely
transmitted, bought, or sold in interstate or foreign commerce,
or persons who travel in interstate or foreign commerce in
order to engage in regulated conduct, the Act is limited
properly to regulation of interstate or foreign commerce.
(11) Photographs and other reproductions of the private
activities of persons obtained through activities regulated by
this Act, and the amendments made by this Act, are routinely
reproduced and broadcast in interstate and international
commerce.
(12) Photographers, videographers, and audio recorders
routinely travel in interstate commerce in order to engage in
the activities regulated by this Act, and the amendments made
by this Act, with the intent, expectation, and routine result
of gaining material that is bought and sold in interstate
commerce.
(13) The activities regulated by this Act, and the
amendments made by this Act, occur routinely in the channels of
interstate commerce, such as the persistent following or
chasing of subjects in an inappropriate manner on public
streets and thoroughfares or in airports, and the use of public
streets and thoroughfares, interstate and international
airports, and travel in interstate and international waters in
order to physically or constructively trespass for commercial
purposes.
(14) The activities regulated by this Act, and the
amendments made by this Act, substantially affect interstate
commerce by threatening the careers, livelihoods, and rights to
publicity of professional public persons in the national and
international media, and by thrusting private persons into the
national and international media.
(15) The activities regulated by this Act, and the
amendments made by this Act, substantially affect interstate
commerce by restricting the movement of persons who are
targeted by such activities and their families, often forcing
them to curtail travel or appearances in public spaces, or,
conversely, forcing them to travel in interstate commerce in
order to escape from abuses regulated by this Act, and the
amendments made by this Act.
(b) Purposes.--The purposes of this Act are--
(1) to protect individuals and their families against
reasonable fear of bodily injury, endangerment, trespass, and
intrusions on their privacy due to activities undertaken in
connection with interstate and international commerce in
reproduction and broadcast of their private activities;
(2) to protect interstate commerce affected by such
activities, including the interstate commerce of individuals
who are the subject of such activities; and
(3) to establish the right of private parties injured by
such activities, as well as the Attorney General of the United
States and State attorneys general in appropriate cases, to
bring actions for appropriate relief.
SEC. 3. CRIMINAL OFFENSE.
(a) In General.--Chapter 89 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1822. Harassment for commercial purposes
``(a) Definitions.--In this section:
``(1) For commercial purposes.--
``(A) In general.--The term `for commercial
purposes' means with the expectation of sale, financial
gain, or other consideration.
``(B) Rule of construction.--For purposes of this
section, a visual image, sound recording, or other
physical impression shall not be found to have been, or
intended to have been, captured for commercial purposes
unless it was intended to be, or was in fact, sold,
published, or transmitted in interstate or foreign
commerce, or unless the person attempting to capture
such image, recording, or impression moved in
interstate or foreign commerce in order to capture such
image, recording, or impression.
``(2) Harasses.--The term `harasses' means persistently
physically follows or chases a person in a manner that causes
the person to have a reasonable fear of bodily injury, in order
to capture by a visual or auditory recording instrument any
type of visual image, sound recording, or other physical
impression of the person for commercial purposes.
``(b) Prohibition and Penalties.--Whoever harasses any person
within the United States or the special maritime and territorial
jurisdiction of the United States--
``(1) if death is proximately caused by such harassment,
shall be imprisoned not less than 20 years and fined under this
title;
``(2) if serious bodily injury is proximately caused by
such harassment, shall be imprisoned not less than 5 years and
fined under this title; and
``(3) if neither death nor serious bodily injury is
proximately caused by such harassment, shall be imprisoned not
more than 1 year, fined under this title, or both.
``(c) Cause of Action.--Any person who is legally present in the
United States and who is subjected to a violation of this section may,
in a civil action against the person engaging in the violation, obtain
any appropriate relief, including compensatory damages, punitive
damages, and injunctive and declaratory relief. In any civil action or
proceeding to enforce a provision of this section, the court shall
allow the prevailing party reasonable attorney's fees as part of the
costs. In awarding attorney's fees, the court shall include expert fees
as part of the attorney's fees.
``(d) Limitation on Defenses.--It is not a defense to a prosecution
or civil action under this section that--
``(1) no image or recording was captured; or
``(2) no image or recording was sold.
``(e) Use of Images.--Nothing in this section may be construed to
make the sale, transmission, publication, broadcast, or use of any
image or recording of the type or under the circumstances described in
this section in any otherwise lawful manner by any person subject to
criminal charge or civil liability.
``(f) Limitation.--Only a person physically present at the time of,
and engaging or assisting another in engaging in, a violation of this
section is subject to criminal charge or civil liability under this
section. A person shall not be subject to such charge or liability by
reason of the conduct of an agent, employee, or contractor of that
person or because images or recordings captured in violation of this
section were solicited, bought, used, or sold by that person.
``(g) Law Enforcement Exemption.--The prohibitions of this section
do not apply with respect to official law enforcement activities.
``(h) Savings.--Nothing in this section shall be taken to preempt
any right or remedy otherwise available under Federal, State or local
law.''.
(b) Technical Amendment.--The analysis for chapter 89 of title 18,
United States Code, is amended by adding at the end the following:
``1822. Harassment for commercial purposes.''.
SEC. 4. PERSONAL INTRUSION FOR COMMERCIAL PURPOSES.
(a) Definition of For Commercial Purposes.--
(1) In general.--In this section, the term `for commercial
purposes' means with the expectation of sale, financial gain,
or other consideration.
(2) Rule of construction.--For purposes of this section, a
visual image, sound recording, or other physical impression
shall not be found to have been, or intended to have been,
captured for commercial purposes unless it was intended to be,
or was in fact, sold, published, or transmitted in interstate
or foreign commerce, or unless the person attempting to capture
such image, recording, or impression moved in interstate or
foreign commerce in order to capture such image, recording, or
impression.
(b) Trespass for Commercial Purposes and Invasion of Legitimate
Interest in Privacy for Commercial Purposes.--
(1) Trespass for commercial purposes.--It shall be unlawful
to trespass on private property in order to capture any type of
visual image, sound recording, or other physical impression of
any person for commercial purposes.
(2) Invasion of legitimate interest in privacy for
commercial purposes.--It shall be unlawful to capture any type
of visual image, sound recording, or other physical impression
for commercial purposes of a personal or familial activity
through the use of a visual or auditory enhancement device,
even if no physical trespass has occurred, if--
(A) the subject of the image, sound recording, or
other physical impression has a reasonable expectation
of privacy with respect to the personal or familial
activity captured; and
(B) the image, sound recording, or other physical
impression could not have been captured without a
trespass if not produced by the use of the enhancement
device.
(c) Cause of Action.--Any person who is legally present in the
United States who is subjected to a violation of this section may, in a
civil action against the person engaging in the violation, obtain any
appropriate relief, including compensatory damages, punitive damages
and injunctive and declaratory relief. A person obtaining relief may be
either or both the owner of the property or the person whose visual or
auditory impression has been captured. In any civil action or
proceeding to enforce a provision of this section, the court shall
allow the prevailing party reasonable attorney's fees as part of the
costs. In awarding attorney's fees, the court shall include expert fees
as part of the attorney's fees.
(d) Limitation on Defenses.--It is not a defense to an action under
this section that--
(1) no image or recording was captured; or
(2) no image or recording was sold.
(e) Use of Images.--Nothing in this section may be construed to
make the sale, transmission, publication, broadcast, or use of any
image or recording of the type or under the circumstances described
herein in any otherwise lawful manner by any person subject to criminal
charge or civil liability.
(f) Limitation.--Only a person physically present at the time of,
and engaging or assisting another in engaging in, a violation of this
section is subject to civil liability under this section. A person
shall not be subject to such liability by reason of the conduct of an
agent, employee, or contractor of that person, or because images or
recordings captured in violation of this section were solicited,
bought, used, or sold by that person.
(g) Law Enforcement Exemption.--The prohibitions of this section do
not apply with respect to official law enforcement activities.
(h) Savings.--Nothing in this section shall be taken to preempt any
right or remedy otherwise available under Federal, State, or local law.
SEC. 5. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of the provisions
of such to any person or circumstance shall not be affected thereby.
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