118 HR 3106 IH: Preventing Deepfakes of Intimate Images Act
U.S. House of Representatives
2023-05-05
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I
118th CONGRESS
1st Session
H. R. 3106
IN THE HOUSE OF REPRESENTATIVES
May 5, 2023
Mr. Morelle (for himself and Ms. Ross) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To prohibit the disclosure of intimate digital depictions, and for other purposes.
1.

Short title
This Act may be cited as the “Preventing Deepfakes of Intimate Images Act”.
2.

Intimate digital depictions
The Violence Against Women Act Reauthorization Act of 2022 is amended by inserting after section 1309 the following:
“1309A.

Disclosure of intimate digital depictions
(a)

Definitions
In this section:
(1)

Consent
The term consent has the meaning given such term in section 1309.
(2)

Depicted individual
The term depicted individual means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.
(3)

Digital depiction
The term digital depiction means a realistic visual depiction, as that term is defined in section 2256(5) of title 18, United States Code, of an individual that has been created or altered using digital manipulation.
(4)

Disclose
The term disclose has the meaning given such term in section 1309.
(5)

Intimate digital depiction
The term intimate digital depiction means a digital depiction of an individual that has been created or altered using digital manipulation and that depicts—
(A)
the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;
(B)
the display or transfer of bodily sexual fluids—
(i)
onto any part of the body of an identifiable individual; or
(ii)
from the body of an identifiable individual; or
(C)
an identifiable individual engaging in sexually explicit conduct.
(6)

Sexually explicit conduct
The term sexually explicit conduct has the meaning given the term in subparagraphs (A) and (B) of section 2256(2) of title 18, United States Code.
(b)

Right of action
(1)

In general
Except as provided in subsection (e), an individual who is the subject of an intimate digital depiction that is disclosed, in or affecting interstate or foreign commerce or using any means or facility of interstate or foreign commerce, without the consent of the individual, where such disclosure was made by a person who knows that, or recklessly disregards whether, the individual has not consented to such disclosure, may bring a civil action against that person in an appropriate district court of the United States for relief as set forth in subsection (d).
(2)

Rights on behalf of certain individuals
In the case of an individual who have not attained 18 years of age or are incompetent, incapacitated, or deceased, the legal guardian of the individual or representative of the individual’s estate, another family member, or any other person appointed as suitable by the court, may assume the individual’s rights under this section, but in no event shall the defendant be named as such representative or guardian.
(c)

Consent
For purposes of an action under subsection (b)—
(1)
an individual’s consent to the creation of the intimate digital depiction shall not establish that the person consented to its disclosure; and
(2)
consent shall be deemed validly given only if—
(A)
it is set forth in an agreement written in plain language signed knowingly and voluntarily by the depicted individual; and
(B)
it includes a general description of the intimate digital depiction and, if applicable, the audiovisual work into which it will be incorporated.
(d)

Relief
(1)

In general
(A)

Damages
In a civil action filed under this section, an individual may recover any of the following:
(i)
An amount equal to the monetary gain made by the defendant from the creation, development, or disclosure of the intimate digital depiction.
(ii)
Either of the following:
(I)
The actual damages sustained by the individual as a result of the intimate digital depiction, including damages for emotional distress.
(II)
Liquidated damages in the amount of $150,000.
(iii)
Punitive damages.
(iv)
The cost of the action, including reasonable attorney’s fees and other litigation costs reasonably incurred.
(B)

Equitable relief
In a civil action filed under this section, a court may, in addition to any other relief available at law, order equitable relief, including a temporary restraining order, a preliminary injunction, or a permanent injunction ordering the defendant to cease display or disclosure of the intimate digital depiction.
(2)

Preservation of anonymity
In ordering relief under this subsection, the court may grant injunctive relief maintaining the confidentiality of a plaintiff using a pseudonym.
(e)

Exceptions
An identifiable individual may not bring an action for relief under this section relating to—
(1)
a disclosure made in good faith—
(A)
to or by a law enforcement officer or agency in the course of reporting or investigating—
(i)
unlawful activity; or
(ii)
unsolicited or unwelcome conduct; or
(B)
as part of a legal proceeding;
(2)
a matter of legitimate public concern or public interest, except that it shall not be considered a matter of legitimate public interest or public concern solely because the depicted individual is a public figure; or
(3)
a disclosure reasonably intended to assist the identifiable individual.
(f)

In camera
A court may authorize an in camera proceeding under this section.
(g)

Disclaimers
It shall not be a defense to an action under this section that there is a disclaimer stating that the intimate digital depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material.
(h)

Limitations
For purposes of this section, a provider of an interactive computer service shall not be held liable on account of—
(1)
any action voluntarily taken in good faith to restrict access to or availability of intimate digital depictions; or
(2)
any action taken to enable or make available to information content providers or other persons the technical means to restrict access to intimate digital depictions.”.
3.

Criminal action
(a)

In general
Chapter 110 of title 18, United States Code, is amended by inserting after section 2252C the following:
“2252D.

Intimate digital depictions
(a)

Offense
Whoever, in or affecting interstate or foreign commerce, discloses or threatens to disclose an intimate digital depiction—
(1)
with the intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or
(2)
with actual knowledge that, or reckless disregard for whether, such disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual,
shall be punished as provided under subsection (b).
(b)

Penalty
Any person who commits an offense under subsection (a) shall be—
(1)
fined under this title, imprisoned for not more than 2 years, or both; or
(2)
fined under this title, imprisoned for not more than 10 years, or both, in the case of a violation in which the creation, reproduction, or distribution of the intimate digital depiction could be reasonably expected to—
(A)
affect the conduct of any administrative, legislative, or judicial proceeding of a Federal, State, local, or Tribal government agency, including the administration of an election or the conduct of foreign relations; or
(B)
facilitate violence.
(c)

Disclaimers
It shall not be a defense to an action under this section that there is a disclaimer stating that the intimate digital depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material.
(d)

Limitations
For purposes of this section, a provider of an interactive computer service shall not be held liable on account of—
(1)
any action voluntarily taken in good faith to restrict access to or availability of intimate digital depictions; or
(2)
any action taken to enable or make available to information content providers or other persons the technical means to restrict access to intimate digital depictions.
(e)

Definitions
In this section:
(1)

Consent
The term consent has the meaning given such term in section 1309 of the Violence Against Women Act Reauthorization Act of 2022.
(2)

Depicted individual
The term depicted individual means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in an intimate digital depiction and who is identifiable by virtue of the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the digital depiction.
(3)

Digital depiction
The term digital depiction means a realistic visual depiction, as that term is defined in section 2256(5), of an individual that has been created or altered using digital manipulation.
(4)

Disclose
The term disclose has the meaning given such term in section 1309 of the Violence Against Women Act Reauthorization Act of 2022.
(5)

Intimate digital depiction
The term intimate digital depiction means a digital depiction of an individual that has been created or altered using digital manipulation and that depicts—
(A)
the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual;
(B)
the display or transfer of bodily sexual fluids—
(i)
onto any part of the body of an identifiable individual; or
(ii)
from the body of an identifiable individual; or
(C)
an identifiable individual engaging in sexually explicit conduct.
(6)

Sexually explicit conduct
The term sexually explicit conduct has the meaning given the term in subparagraphs (A) and (B) of section 2256(2).”.
(b)

Clerical amendment
The table of sections for chapter 110 of title 18, United States Code is amended by inserting after the item relating to section 2252C the following new item:
“2252D. Intimate digital depictions.”.