[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2536 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2536
To amend title 18, United States Code, to provide for enhanced criminal
and civil remedies in the protection of children and other victims of
commercial sexual exploitation and related crimes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 26, 2014
Mr. Kirk (for himself and Mrs. Feinstein) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to provide for enhanced criminal
and civil remedies in the protection of children and other victims of
commercial sexual exploitation and related crimes.
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 ``Stop Advertising Victims of
Exploitation Act of 2014'' or the ``SAVE Act''.
SEC. 2. FINDINGS AND CONSTRUCTION OF PROVISIONS.
Congress finds that--
(1) sex trafficking is modern day slavery and violates the
Thirteenth Amendment to the Constitution of the United States;
(2) this Act and the amendments made by this Act are
enacted as an exercise of the authority of Congress to enforce
the Thirteenth Amendment to the Constitution of the United
States by appropriate legislation;
(3) this Act and the amendments made by this Act are also
enacted as an exercise of the authority of Congress under the
commerce clause of section 8 of article I of the Constitution
of the United States to regulate, by appropriate legislation,
the instrumentalities of interstate and foreign commerce, as
well as that which directly and materially affects interstate
and foreign commerce; and
(4) this Act and the amendments made by this Act should be
liberally construed to effectuate its remedial purposes to the
full extent permitted by the First Amendment to the
Constitution of the United States, including the commercial
speech doctrine.
SEC. 3. PROTECTION OF CHILDREN AND OTHER VICTIMS OF COMMERCIAL SEXUAL
EXPLOITATION.
(a) In General.--Chapter 77 of title 18, United States Code, is
amended by inserting after section 1591 the following:
``Sec. 1591A. Commercial sexual exploitation
``(a) Definitions.--In this section, the following definitions
apply:
``(1) Adult advertisement.--The term `adult advertisement'
means any advertisement that--
``(A) is subject to the recordkeeping requirements
under section 2257; or
``(B) is designed, in whole or in part, to induce a
lawful or unlawful commercial exchange for--
``(i) a sexual act or sexual contact, as
those terms are defined in section 2246;
``(ii) sexually explicit conduct, as
defined in section 2256;
``(iii) a commercial sex act, as defined in
section 103 of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7102); or
``(iv) the goods or services of an adult
escort or erotic performer involving any
commercial exchange described in clause (i),
(ii), or (iii).
``(2) Advertisement.--The term `advertisement' includes any
written or verbal statement, illustration, or depiction in any
medium which is designed, in whole or in part, to induce a
lawful or unlawful commercial exchange of a good or service for
money, property, or another item of value, including another
good or service.
``(3) Commercially promote.--The term `commercially
promote' means to aid, abet, counsel, command, induce, procure,
or cause the creation, placement, distribution, publication, or
maintenance of any advertisement, or any series of
advertisements, in exchange for any financial gain, property,
or other item of value, obtained from any information content
provider of any such advertisement or any series of
advertisements.
``(4) Common carrier; telecommunications carrier.--The
terms `common carrier' and `telecommunications carrier' have
the meanings given those terms in section 3 of the
Communications Act of 1934 (47 U.S.C. 153).
``(5) Information content provider.--The term `information
content provider' has the meaning given the term in section 230
of the Communications Act (47 U.S.C. 230).
``(6) Interactive advertising network service provider.--
The term `interactive advertising network service provider'
means an independent, third party broker of online, wireless,
or interactive television advertising, including banners,
sponsorships, email, keyword searches, slotting fees, and
interactive television commercials, and not including
classified advertising or a website referral link.
``(7) Internet access service; internet information
location tool.--The terms `Internet access service' and
`Internet information location tool' have the meanings given
those terms in section 231 of the Communications Act of 1934
(47 U.S.C. 231).
``(8) Person.--The term `person' includes any individual or
entity that is capable of holding legal or beneficial interest
in property.
``(9) State.--The term `State' means any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, any territory or possession of the United States,
and any political subdivision, department, agency, or
instrumentality of any such entity.
``(b) Offense.--
``(1) In general.--It shall be unlawful for a person to use
any means or facility of interstate or foreign commerce to--
``(A) knowingly sell, commercially promote, place,
or maintain an adult advertisement, or any series of
adult advertisements in a medium whose predominant
purpose or use is to facilitate commercial
transactions; and
``(B) act with reckless disregard of the fact that
the adult advertisement, or the series of adult
advertisements, facilitates or is designed to
facilitate--
``(i) an offense under paragraph (1) or (2)
of section 1591(a) in which the person
recruited, enticed, harbored, transported,
provided, obtained, or maintained has not
attained the age of 18 years at the time of
such offense; or
``(ii) an offense in violation of any
provision of State law prohibiting felony
offenses relating to child pimping, child
prostitution, child sexual abuse, assault on
children, or the sex trafficking of children.
``(2) Criminal penalty.--Any person who violates paragraph
(1) shall be fined under this title, imprisoned not more than
10 years, or both, for each such violation.
``(3) Limitations on liability.--
``(A) Generic search or utility services.--An
Internet access service provider, Internet browser or
mobile browser provider, external search engine
provider, external Internet information location tool
provider (including a domain name registry or other
domain name or root zone service provider), interactive
advertising network service provider, common carrier,
telecommunications carrier, or other such generic
search or utility provider shall not incur any criminal
or civil liability under this subsection or be subject
to the recordkeeping requirements under subsection (c)
solely based on providing such generic search or
utility services.
``(B) Victims younger than 18 years of age.--For
the purposes of paragraph (1), any defendant in full
compliance with subsection (c) may not be found
reckless as to the fact of the age element of a minor
victim of a predicate offense specified in paragraph
(1).
``(4) Estoppel.--A final judgment or decree rendered in
favor of the United States in any criminal proceeding brought
by the United States under this section shall estop the
defendant from denying the essential allegations of the
criminal offense in any subsequent civil proceeding, but a
prior criminal proceeding is not a prerequisite to the
commencement of any civil action under this chapter or any
other provision of law.
``(c) Recordkeeping for Adult Advertisements.--
``(1) Adult advertising verification requirements.--Subject
to subsection (b)(3)(A), any person who uses any means or
facility of interstate or foreign commerce to sell,
commercially promote, place, or maintain an adult
advertisement, or a series of adult advertisements, shall--
``(A) before selling, commercially promoting, or
placing the adult advertisement, or series of adult
advertisements--
``(i) verify the identity of each person
purchasing advertisement space to post such
adult advertisement, or series of adult
advertisements, by--
``(I) obtaining confirmation of the
identity of the person;
``(II) obtaining a copy of a
government-issued document containing a
photograph, the name, and the date of
birth of the person; and
``(III) obtaining such other
indicia of the identity of the person
as may be required by regulation; and
``(ii) create and maintain for not less
than 7 years individually identifiable records
pertaining to each person described in clause
(i) that include the information described in
clause (i) and such other identifying
information as may be required by regulation;
``(B) before selling, commercially promoting, or
placing the adult advertisement, or series of adult
advertisements--
``(i) verify the identity of each person
depicted within such adult advertisement, or
series of adult advertisements, by taking the
actions described in subclauses (I) through
(III) of subparagraph (A)(i); and
``(ii) create and maintain for not less
than 7 years individually identifiable records
pertaining to each person described in clause
(i) that include the information described in
subparagraph (A)(i) and such other identifying
information as may be required by regulation;
and
``(C) before selling, commercially promoting, or
placing the adult advertisement, or series of adult
advertisements--
``(i) verify that each person whose goods
or services are advertised by such adult
advertisement, or series of adult
advertisements, is not less than 18 years of
age by obtaining such indicia of the identity
of the person as may be required by regulation;
and
``(ii) create and maintain for not less
than 7 years individually identifiable records
pertaining to information described in clause
(i) that include such identifying information
as may be required by regulation.
``(2) Recordkeeping.--Any person to whom paragraph (1)
applies shall--
``(A) maintain the records required under paragraph
(1) at the business premises of the person, or at such
other place as the Attorney General may by regulation
prescribe; and
``(B) make the records available to the Attorney
General, any designee of the Attorney General, the
attorney general of a State, and any designee of the
attorney general of a State for inspection at all
reasonable times.
``(3) Use of information.--
``(A) In general.--No information or evidence
obtained from a record required to be created or
maintained by an individual under this subsection shall
be used, directly or indirectly, as evidence against
that individual in a criminal proceeding where such use
would violate that individual's constitutional
privilege against compulsory self-incrimination.
``(B) Exception.--Information or evidence obtained
from a record required to be created or maintained by
an individual under this subsection may be used against
the individual in a prosecution or other action for a
violation of this subsection or for a violation of any
applicable provision of law relating to the furnishing
of false information.
``(4) Notice requirement.--
``(A) In general.--Any person to whom paragraph (1)
applies shall cause to be affixed to each adult
advertisement sold, commercially promoted, placed, or
maintained by the person, in such manner and in such
form as the Attorney General shall by regulation
establish, a statement describing where the records
required by this subsection may be located with respect
to each person depicted or advertised within such adult
advertisement or series of adult advertisements.
``(B) Organizations.--If the person to whom
paragraph (1) applies is an organization, the statement
required by this paragraph shall include the name,
title, and business address of the individual employed
by the organization responsible for maintaining the
records required by this subsection.
``(5) Regulations.--The Attorney General shall issue
appropriate regulations to carry out this section, which shall
include regulations directing any person to whom paragraph (1)
applies to take reasonable measures to ensure the means or
facility of interstate or foreign commerce used by the person
is not being used to facilitate prostitution or sexual
exploitation of children by--
``(A) reviewing postings before they are published
to ensure the postings do not offer minors for
commercial sex or contain sexually explicit images of
minors, and immediately removing such postings;
``(B) prohibiting the use of euphemisms and code
words for, or used as a part of, a commercial exchange
described in subsection (a)(1)(B);
``(C) preventing the reposting of previously banned
or removed postings or postings by persons who
repeatedly post inappropriate content;
``(D) requiring a person who posts an adult
advertisement to provide a valid telephone number and
credit card number (regardless of whether a fee is
charged for the posting);
``(E) if a fee is charged for posting an adult
advertisement, prohibiting the use of anonymous payment
methods, including algorithm currencies, virtual
currencies, prepaid cards, and gift cards;
``(F) requiring the reporting of any instances of
apparent child sexual exploitation or online enticement
of children to law enforcement agencies and the
National Center for Missing and Exploited Children;
``(G) including information in the means or
facility of interstate or foreign commerce directing
users to report information about the prostitution of
children to the National Center for Missing and
Exploited Children and the National Human Trafficking
Resource Center; and
``(H) affixing to each adult advertisement placed
or maintained on the means or facility of interstate or
foreign commerce, in such manner and in such form as
the Attorney General shall by regulation establish,
contact information regarding how to contact the
CyberTipline of the National Center for Missing and
Exploited Children.
``(6) Criminal penalty.--
``(A) In general.--Any person to whom paragraph (1)
applies, shall be fined not less than $250,000 and not
more than $350,000 for each violation, imprisoned not
more than 5 years, or both, if such person--
``(i) fails to create or maintain the
records as required by this subsection or by
any regulation promulgated under this
subsection;
``(ii) knowingly makes any false entry in
or knowingly fails to make an appropriate entry
in, any record required by this subsection or
any regulation promulgated under this section;
``(iii) knowingly fails to comply with the
provisions of this subsection or any regulation
promulgated under this section; or
``(iv) refuses to permit the Attorney
General, a designee of the Attorney General,
the attorney general of a State, or a designee
of the attorney general of a State to conduct
an inspection under this subsection.
``(B) Criminal penalty for repeat offenders.--In
the case of a second or subsequent conviction of a
violation described in subparagraph (A) by a person to
whom paragraph (1) applies, the person shall be fined
not less than $350,000 and not more than $500,000 for
each such violation, imprisoned for not more than 15
years, or both.''.
(b) Criminal Forfeiture.--Section 982(a) of title 18, United States
Code, is amended by adding at the end the following:
``(9) The court, in sentencing a defendant convicted of an
offense under section 1591A, shall order that the defendant
forfeit to the United States any real or personal property--
``(A) used or intended to be used to commit, to
facilitate, or to promote the commission of such
offense; and
``(B) constituting, derived from, or traceable to
the gross proceeds that the defendant obtained directly
or indirectly as a result of the offense.''.
(c) Civil Action.--Section 1595(a) of title 18, United States Code,
is amended by inserting ``or person (as defined in section 1591A)''
after ``individual''.
(d) Extraterritorial Jurisdiction.--Section 1596(a) of title 18,
United States Code, is amended by striking ``or 1591'' and inserting
``1591, or 1591A''.
(e) Duty To Report.--Section 2258A of title 18, United States Code,
is amended--
(1) by striking subsection (a)(2) and inserting the
following:
``(2) Facts or circumstances.--The facts or circumstances
described in this paragraph are any facts or circumstances--
``(A) from which there is an apparent violation
of--
``(i) section 1466A;
``(ii) section 2251, 2251A, 2252, 2252A,
2252B, or 2260 that involves child pornography;
or
``(iii) section 2422(b); or
``(B) that involve commercial sexual exploitation
of children or online enticement of children.'';
(2) in subsection (b)(1), by striking ``violated a Federal
law described in subsection (a)(2)'' and inserting ``violated a
Federal law described in subsection (a)(2)(A) or engaged in
conduct described in subsection (a)(2)(B)''; and
(3) by striking subsection (e) and inserting the following:
``(e) Failure To Report.--An electronic communication service
provider or remote computing service provider that fails to make a
report required under subsection (a)(1), with reckless disregard of the
requirement to make a report required under subsection (a)(1), shall be
fined--
``(1) in the case of an initial such failure to make a
report, not more than $250,000; and
``(2) in the case of any second or subsequent such failure
to make a report, not more than $500,000.''.
(f) False Statements.--Section 1001(a) of title 18, United States
Code, is amended, in the matter following paragraph (3), by adding at
the end the following: ``If the matter relates to an offense under
section 1591A, the term of imprisonment imposed under this section
shall be not more than 15 years.''.
(g) Technical and Conforming Amendment.--The table of sections for
chapter 77 of title 18, United States Code, is amended by inserting,
after the item relating to section 1591, the following:
``1591A. Commercial sexual exploitation.''.
SEC. 4. SEVERABILITY.
If any provision of this Act or any amendment made by this Act, or
any application of such provision or amendment to any person or
circumstance, is held to be unconstitutional, the remainder of the
provisions of this Act and the amendments made by this Act and the
application of the provision or amendment to any other person or
circumstance shall not be affected.
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