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

<DOC>






118th CONGRESS
  2d Session
                                S. 3696

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 30, 2024

  Mr. Durbin (for himself, Mr. Graham, Mr. Hawley, and Ms. Klobuchar) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
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. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE IMAGES.

    (a) Definitions.--Section 1309(a) of the Consolidated 
Appropriations Act, 2022 (15 U.S.C. 6851(a)) is amended--
            (1) in paragraph (2), by inserting ``competent,'' after 
        ``conscious,'';
            (2) by redesignating paragraphs (5) and (6) as paragraphs 
        (6) and (7), respectively;
            (3) by redesignating paragraph (3) as paragraph (5);
            (4) by inserting after paragraph (2) the following:
            ``(3) Digital forgery.--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, to 
        appear to a reasonable person to be indistinguishable from an 
        authentic visual depiction of the individual, regardless of 
        whether the visual depiction indicates, through a label or some 
        other form of information published with the visual depiction, 
        that the visual depiction is not authentic.'';
            (5) in paragraph (5), as so redesignated--
                    (A) by striking ``(5) Depicted'' and inserting 
                ``(5) Identifiable''; and
                    (B) by striking ``depicted individual'' and 
                inserting ``identifiable individual''; and
            (6) in paragraph (6)(A), as so redesignated--
                    (A) in clause (i), by striking ``; or'' and 
                inserting a semicolon;
                    (B) in clause (ii)--
                            (i) in subclause (I), by striking 
                        ``individual;'' and inserting ``individual; 
                        or''; and
                            (ii) by striking subclause (III); and
                    (C) 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, 
                                disclosure, solicitation, or 
                                possession;
                                    ``(II) the person knew or 
                                recklessly disregarded that the 
                                identifiable individual did not consent 
                                to such production, disclosure, 
                                solicitation, or possession; 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 did not consent 
                                to such 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.--In a civil action filed under this section--
                    ``(A) an identifiable individual may recover the 
                actual damages sustained by the individual or 
                liquidated damages in the amount of $150,000, and the 
                cost of the action, including reasonable attorney's 
                fees and other litigation costs reasonably incurred; 
                and
                    ``(B) the 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 visual depiction or digital forgery.
            ``(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 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. 3. 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.
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