[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 412 Engrossed in Senate (ES)]

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118th CONGRESS
  2d Session
                                 S. 412

_______________________________________________________________________

                                 AN ACT


 
To provide that it is unlawful to knowingly distribute private intimate 
visual depictions with reckless disregard for the individual's lack of 
          consent to the distribution, 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 ``Stopping Harmful Image Exploitation 
and Limiting Distribution Act of 2023'' or the ``SHIELD Act of 2023''.

SEC. 2. 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:
``Sec. 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.

            Passed the Senate July 10, 2024.

            Attest:

                                                             Secretary.
118th CONGRESS

  2d Session

                                 S. 412

_______________________________________________________________________

                                 AN ACT

To provide that it is unlawful to knowingly distribute private intimate 
visual depictions with reckless disregard for the individual's lack of 
          consent to the distribution, and for other purposes.