[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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