[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3696 Engrossed in Senate (ES)]

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118th CONGRESS
  2d Session
                                S. 3696

_______________________________________________________________________

                                 AN ACT


 
To improve rights to relief for individuals affected by non-consensual 
    activities involving intimate digital forgeries, and for other 
                               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 ``Disrupt Explicit Forged Images and 
Non-Consensual Edits Act of 2024'' or the ``DEFIANCE Act of 2024''.

SEC. 2. FINDINGS.

    Congress finds that:
            (1) Digital forgeries, often called deepfakes, are 
        synthetic images and videos that look realistic. The technology 
        to create digital forgeries is now ubiquitous and easy to use. 
        Hundreds of apps are available that can quickly generate 
        digital forgeries without the need for any technical expertise.
            (2) Digital forgeries can be wholly fictitious but can also 
        manipulate images of real people to depict sexually intimate 
        conduct that did not occur. For example, some digital forgeries 
        will paste the face of an individual onto the body of a real or 
        fictitious individual who is nude or who is engaging in sexual 
        activity. Another example is a photograph of an individual that 
        is manipulated to digitally remove the clothing of the 
        individual so that the person appears to be nude.
            (3) The individuals depicted in such digital forgeries are 
        profoundly harmed when the content is produced, disclosed, or 
        obtained without the consent of those individuals. These harms 
        are not mitigated through labels or other information that 
        indicates that the depiction is fake.
            (4) It can be destabilizing to victims whenever those 
        victims are depicted in sexual digital forgeries against their 
        will, as the privacy of those victims is violated and the 
        victims lose control over their likeness and identity.
            (5) Victims can feel helpless because the victims--
                    (A) may not be able to determine who has created 
                the content; and
                    (B) do not know how to prevent further disclosure 
                of the digital forgery or how to prevent more forgeries 
                from being made.
            (6) Victims may be fearful of being in public out of 
        concern that individuals the victims encounter have seen the 
        digital forgeries. This leads to social rupture through the 
        loss of the ability to trust, stigmatization, and isolation.
            (7) Victims of non-consensual, sexually intimate digital 
        forgeries may experience depression, anxiety, and suicidal 
        ideation. These victims may also experience the ``silencing 
        effect'' in which the victims withdraw from online spaces and 
        public discourse to avoid further abuse.
            (8) Digital forgeries are often used to--
                    (A) harass victims, interfering with their 
                employment, education, reputation, or sense of safety; 
                or
                    (B) commit extortion, sexual assault, domestic 
                violence, and other crimes.
            (9) Because of the harms caused by non-consensual, sexually 
        intimate digital forgeries, such digital forgeries are 
        considered to be a form of image-based sexual abuse.

SEC. 3. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE IMAGES.

    (a) Definitions.--Section 1309 of the Consolidated Appropriations 
Act, 2022 (15 U.S.C. 6851) is amended--
            (1) in the heading, by inserting ``or nonconsensual 
        activity involving digital forgeries'' after ``intimate 
        images''; and
            (2) in subsection (a)--
                    (A) in paragraph (2), by inserting ``competent,'' 
                after ``conscious,'';
                    (B) by redesignating paragraphs (5) and (6) as 
                paragraphs (6) and (7), respectively;
                    (C) by redesignating paragraph (3) as paragraph 
                (5);
                    (D) by inserting after paragraph (2) the following:
            ``(3) Digital forgery.--
                    ``(A) In general.--The term `digital forgery' means 
                any intimate visual depiction of an identifiable 
                individual created through the use of software, machine 
                learning, artificial intelligence, or any other 
                computer-generated or technological means, including by 
                adapting, modifying, manipulating, or altering an 
                authentic visual depiction, that, when viewed as a 
                whole by a reasonable person, is indistinguishable from 
                an authentic visual depiction of the individual.
                    ``(B) Labels, disclosure, and context.--Any visual 
                depiction described in subparagraph (A) constitutes a 
                digital forgery for purposes of this paragraph 
                regardless of whether a label, information disclosed 
                with the visual depiction, or the context or setting in 
                which the visual depiction is disclosed states or 
                implies that the visual depiction is not authentic.'';
                    (E) in paragraph (5), as so redesignated--
                            (i) by striking ``(5) Depicted'' and 
                        inserting ``(5) Identifiable''; and
                            (ii) by striking ``depicted individual'' 
                        and inserting ``identifiable individual''; and
                    (F) in paragraph (6)(A), as so redesignated--
                            (i) in clause (i), by striking ``; or'' and 
                        inserting a semicolon;
                            (ii) in clause (ii)--
                                    (I) in subclause (I), by striking 
                                ``individual;'' and inserting 
                                ``individual; or''; and
                                    (II) by striking subclause (III); 
                                and
                            (iii) by adding at the end the following:
                            ``(iii) an identifiable individual engaging 
                        in sexually explicit conduct; and''.
    (b) Civil Action.--Section 1309(b) of the Consolidated 
Appropriations Act, 2022 (15 U.S.C. 6851(b)) is amended--
            (1) in paragraph (1)--
                    (A) by striking paragraph (A) and inserting the 
                following:
                    ``(A) In general.--Except as provided in paragraph 
                (5)--
                            ``(i) an identifiable individual whose 
                        intimate visual depiction 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 
                        identifiable individual, where such disclosure 
                        was made by a person who knows or recklessly 
                        disregards that the identifiable 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 paragraph (3);
                            ``(ii) an identifiable individual who is 
                        the subject of a digital forgery may bring a 
                        civil action in an appropriate district court 
                        of the United States for relief as set forth in 
                        paragraph (3) against any person that knowingly 
                        produced or possessed the digital forgery with 
                        intent to disclose it, or knowingly disclosed 
                        or solicited the digital forgery, if--
                                    ``(I) the identifiable individual 
                                did not consent to such production or 
                                possession with intent to disclose, 
                                disclosure, or solicitation;
                                    ``(II) the person knew or 
                                recklessly disregarded that the 
                                identifiable individual did not consent 
                                to such production or possession with 
                                intent to disclose, disclosure, or 
                                solicitation; and
                                    ``(III) such production, 
                                disclosure, solicitation, or possession 
                                is in or affects interstate or foreign 
                                commerce or uses any means or facility 
                                of interstate or foreign commerce; and
                            ``(iii) an identifiable individual who is 
                        the subject of a digital forgery may bring a 
                        civil action in an appropriate district court 
                        of the United States for relief as set forth in 
                        paragraph (3) against any person that knowingly 
                        produced the digital forgery if--
                                    ``(I) the identifiable individual 
                                did not consent to such production;
                                    ``(II) the person knew or 
                                recklessly disregarded that the 
                                identifiable individual--
                                            ``(aa) did not consent to 
                                        such production; and
                                            ``(bb) was harmed, or was 
                                        reasonably likely to be harmed, 
                                        by the production; and
                                    ``(III) such production is in or 
                                affects interstate or foreign commerce 
                                or uses any means or facility of 
                                interstate or foreign commerce.''; and
                    (B) in subparagraph (B)--
                            (i) in the heading, by inserting 
                        ``identifiable'' before ``individuals''; and
                            (ii) by striking ``an individual who is 
                        under 18 years of age, incompetent, 
                        incapacitated, or deceased, the legal guardian 
                        of the individual'' and inserting ``an 
                        identifiable individual who is under 18 years 
                        of age, incompetent, incapacitated, or 
                        deceased, the legal guardian of the 
                        identifiable individual'';
            (2) in paragraph (2)--
                    (A) in subparagraph (A)--
                            (i) by inserting ``identifiable'' before 
                        ``individual'';
                            (ii) by striking ``depiction'' and 
                        inserting ``intimate visual depiction or 
                        digital forgery''; and
                            (iii) by striking ``distribution'' and 
                        inserting ``disclosure, solicitation, or 
                        possession''; and
                    (B) in subparagraph (B)--
                            (i) by inserting ``identifiable'' before 
                        individual;
                            (ii) by inserting ``or digital forgery'' 
                        after each place the term ``depiction'' 
                        appears; and
                            (iii) by inserting ``, solicitation, or 
                        possession'' after ``disclosure'';
            (3) by redesignating paragraph (4) as paragraph (5);
            (4) by striking paragraph (3) and inserting the following:
            ``(3) Relief.--
                    ``(A) In general.--In a civil action filed under 
                this section, an identifiable individual may recover--
                            ``(i) damages as provided under 
                        subparagraph (C); and
                            ``(ii) the cost of the action, including 
                        reasonable attorney fees and other litigation 
                        costs reasonably incurred.
                    ``(B) Punitive damages and other relief.--The court 
                may, in addition to any other relief available at law, 
                award punitive damages or order equitable relief, 
                including a temporary restraining order, a preliminary 
                injunction, or a permanent injunction ordering the 
                defendant to delete, destroy, or cease display or 
                disclosure of the intimate visual depiction or digital 
                forgery.
                    ``(C) Damages.--For purposes of subparagraph 
                (A)(i), the identifiable individual may recover--
                            ``(i) liquidated damages in the amount of--
                                    ``(I) $150,000; or
                                    ``(II) $250,000 if the conduct at 
                                issue in the claim was--
                                            ``(aa) committed in 
                                        relation to actual or attempted 
                                        sexual assault, stalking, or 
                                        harassment of the identifiable 
                                        individual by the defendant; or
                                            ``(bb) the direct and 
                                        proximate cause of actual or 
                                        attempted sexual assault, 
                                        stalking, or harassment of the 
                                        identifiable individual by any 
                                        person; or
                            ``(ii) actual damages sustained by the 
                        individual, which shall include any profits of 
                        the defendant that are attributable to the 
                        conduct at issue in the claim that are not 
                        otherwise taken into account in computing the 
                        actual damages.
                    ``(D) Calculation of defendant's profit.--For 
                purposes of subparagraph (C)(ii), to establish the 
                defendant's profits, the identifiable individual shall 
                be required to present proof only of the gross revenue 
                of the defendant, and the defendant shall be required 
                to prove the deductible expenses of the defendant and 
                the elements of profit attributable to factors other 
                than the conduct at issue in the claim.
            ``(4) Preservation of privacy.--In a civil action filed 
        under this section, the court may issue an order to protect the 
        privacy of a plaintiff, including by--
                    ``(A) permitting the plaintiff to use a pseudonym;
                    ``(B) requiring the parties to redact the personal 
                identifying information of the plaintiff from any 
                public filing, or to file such documents under seal; 
                and
                    ``(C) issuing a protective order for purposes of 
                discovery, which may include an order indicating that 
                any intimate visual depiction or digital forgery shall 
                remain in the care, custody, and control of the 
                court.'';
            (5) in paragraph (5)(A), as so redesignated--
                    (A) by striking ``image'' and inserting ``visual 
                depiction or digital forgery''; and
                    (B) by striking ``depicted'' and inserting 
                ``identifiable''; and
            (6) by adding at the end the following:
            ``(6) Statute of limitations.--Any action commenced under 
        this section shall be barred unless the complaint is filed not 
        later than 10 years from the later of--
                    ``(A) the date on which the identifiable individual 
                reasonably discovers the violation that forms the basis 
                for the claim; or
                    ``(B) the date on which the identifiable individual 
                reaches 18 years of age.
            ``(7) Duplicative recovery barred.--No relief may be 
        ordered under paragraph (3) against a person who is subject to 
        a judgment under section 2255 of title 18, United States Code, 
        for the same conduct involving the same identifiable individual 
        and the same intimate visual depiction or digital forgery.''.
    (c) Continued Applicability of Federal, State, and Tribal Law.--
            (1) In general.--This Act shall not be construed to impair, 
        supersede, or limit a provision of Federal, State, or Tribal 
        law.
            (2) No preemption.--Nothing in this Act shall prohibit a 
        State or Tribal government from adopting and enforcing a 
        provision of law governing disclosure of intimate images or 
        nonconsensual activity involving a digital forgery, as defined 
        in section 1309(a) of the Consolidated Appropriations Act, 2022 
        (15 U.S.C. 6851(a)), as amended by this Act, that is at least 
        as protective of the rights of a victim as this Act.

SEC. 4. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such a provision or amendment to any person or 
circumstance, is held to be unconstitutional, the remaining provisions 
of and amendments made by this Act, and the application of the 
provision or amendment held to be unconstitutional to any other person 
or circumstance, shall not be affected thereby.

            Passed the Senate July 23, 2024.

            Attest:

                                                             Secretary.
118th CONGRESS

  2d Session

                                S. 3696

_______________________________________________________________________

                                 AN ACT

To improve rights to relief for individuals affected by non-consensual 
    activities involving intimate digital forgeries, and for other 
                               purposes.