Certain activities relating to intimate visual depictions

(a)

In general

Chapter 88 of title 18, United States Code, is amended by adding at the end the following:

1802.

Certain activities relating to intimate visual depictions

(a)

Definitions

In this section:(1)

Communications service

The term communications service means—(A)a service provided by a person that is a common carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153), insofar as the person is acting as a common carrier;(B)an electronic communication service, as that term is defined in section 2510;(C)an information service, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153); and(D)an interactive computer service, as that term is defined in section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)).(2)

Information content provider

The term information content provider has the meaning given that term in section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)).(3)

Intimate visual depiction

The term intimate visual depiction means any visual depiction (as that term is defined in section 2256(5)) of an individual—(A)who has attained 18 years of age at the time the intimate visual depiction is created;(B)who is recognizable to a third party from the intimate image itself or information or text displayed in connection with the intimate image itself or information or text displayed in connection with the intimate image; and(C)(i)who is depicted engaging in sexually explicit conduct; or(ii)whose genitals, anus, pubic area, or female nipple are unclothed and visible.(4)

Minor

The term minor has the meaning given that term in section 2256. (5)

Sexually explicit conduct

The term sexually explicit conduct has the meaning given that term in section 2256(2)(A). (6)

Visual depiction of a nude minor

The term visual depiction of a nude minor means any visual depiction (as that term is defined in section 2256(5)) of an individual who is recognizable by an individual other than the depicted individual from the intimate image itself or information or text displayed in connection with the intimate image who was under 18 years of age at the time the visual depiction was created in which the actual anus, genitals, or pubic area, or post-pubescent female nipple, of the minor are unclothed, visible, and displayed in a manner that does not constitute sexually explicit conduct.(b)

Offenses

(1)

In general

Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to knowingly distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, an intimate visual depiction of an individual—(A)that was obtained or created under circumstances in which the actor knew or reasonably should have known the individual depicted had a reasonable expectation of privacy;(B)where what is depicted was not voluntarily exposed by the individual in a public or commercial setting;(C)where what is depicted is not a matter of public concern; and(D)if the distribution—(i)is intended to cause harm; or(ii)causes harm, including psychological, financial, or reputational harm, to the individual depicted.

For purposes of this paragraph, the fact that the subject of the depiction consented to the creation of the depiction shall not establish that that person consented to its distribution.

(2)

Involving minors

Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to knowingly distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, a visual depiction of a nude minor with intent to abuse, humiliate, harass, or degrade the minor, or to arouse or gratify the sexual desire of any person.(c)

Penalty

(1)

In general

(A)

Visual depiction of a nude minor

Any person who violates subsection (b)(2) shall be fined under this title, imprisoned not more than 3 years, or both.(B)

Intimate visual depiction

Any person who violates subsection (b)(1) shall be fined under this title, imprisoned for not more than 2 years, or both.(2)

Forfeiture

(A)

In general

The court, in imposing a sentence on any person convicted of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, or convicted of a conspiracy of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States—(i)any material distributed in violation of this section;(ii)such person’s interest in property, real or personal, constituting or derived from any gross proceeds of such violation, or any property traceable to such property, obtained or retained directly or indirectly as a result of such 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 such violation.(B)

Procedures

Section 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of subsections (a) and (d), applies to the criminal forfeiture of property pursuant to subparagraph (A).(3)

Restitution

Restitution shall be available as provided in section 2264 of this title.(d)

Exceptions

(1)

Law enforcement, lawful reporting, and other legal proceedings

This section—(A)does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States; and(B)shall not apply to distributions that are made reasonably and in good faith—(i)to report unlawful or unsolicited activity or in pursuance of a legal or professional or other lawful obligation;(ii)to seek support or help with respect to the receipt of an unsolicited intimate visual depiction;(iii)relating to an individual who possesses or distributes a visual depiction of himself or herself engaged in nudity or sexually explicit conduct;(iv)to assist the depicted individual; (v)for legitimate medical, scientific, or educational purposes; or(vi)as part of a document production or filing associated with a legal proceeding.(2)

Service providers

This section shall not apply to any provider of a communications service with regard to content provided by another information content provider unless the provider of the communications service intentionally solicits, or knowingly and predominantly distributes, such content.(e)

Threats

Any person who intentionally threatens to commit an offense under subsection (b) for the purpose of intimidation, coercion, extortion, or to create mental distress shall be punished as provided in subsection (c).(f)

Extraterritoriality

There is extraterritorial Federal jurisdiction over an offense under this section if the defendant or the depicted individual is a citizen or permanent resident of the United States.(g)

Rule of construction

Nothing in this section shall be construed to limit the application of any other relevant law, including section 2252 of this title.

(b)

Clerical amendment

The table of sections for chapter 88 of title 18, United States Code, is amended by inserting after the item relating to section 1801 the following:

1802. Certain activities relating to intimate visual depictions.

(c)

Conforming amendment

Section 2264(a) of title 18, United States Code, is amended by inserting , or under section 1802 of this title before the period.