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

<DOC>





                                                        Calendar No. 78
118th CONGRESS
  1st Session
                                 S. 412

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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 14, 2023

 Ms. Klobuchar (for herself, Mr. Cornyn, Mr. Lee, Mr. Blumenthal, Mr. 
Graham, Mr. Cruz, and Mr. Durbin) introduced the following bill; which 
     was read twice and referred to the Committee on the Judiciary

                              May 17, 2023

               Reported by Mr. Durbin, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Stopping Harmful Image 
Exploitation and Limiting Distribution Act of 2023'' or the ``SHIELD 
Act of 2023''.</DELETED>

<DELETED>SEC. 2. CERTAIN ACTIVITIES RELATING TO INTIMATE VISUAL 
              DEPICTIONS.</DELETED>

<DELETED>    (a) In General.--Chapter 88 of title 18, United States 
Code, is amended by adding at the end the following:</DELETED>
<DELETED>``Sec. 1802. Certain activities relating to intimate visual 
              depictions</DELETED>
<DELETED>    ``(a) Definitions.--In this section:</DELETED>
        <DELETED>    ``(1) Communications service.--The term 
        `communications service' means--</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(B) an electronic communication service, 
                as that term is defined in section 2510;</DELETED>
                <DELETED>    ``(C) an information service, as that term 
                is defined in section 3 of the Communications Act of 
                1934 (47 U.S.C. 153); and</DELETED>
                <DELETED>    ``(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)).</DELETED>
        <DELETED>    ``(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)).</DELETED>
        <DELETED>    ``(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 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 itself or 
        information or text displayed in connection with the intimate 
        image who has attained 18 years of age at the time the intimate 
        visual depiction is created and--</DELETED>
                <DELETED>    ``(A) who is depicted engaging in sexually 
                explicit conduct; or</DELETED>
                <DELETED>    ``(B) whose genitals, anus, pubic area, or 
                female nipple are unclothed and visible.</DELETED>
        <DELETED>    ``(4) 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.</DELETED>
        <DELETED>    ``(5) Sexually explicit conduct.--The term 
        `sexually explicit conduct' has the meaning given that term in 
        section 2256(2)(A).</DELETED>
<DELETED>    ``(b) Offense.--</DELETED>
        <DELETED>    ``(1) In general.--Except as provided in 
        subsection (d), it shall be unlawful to knowingly mail, or to 
        distribute using any means or facility of interstate or foreign 
        commerce or affecting interstate or foreign commerce, an 
        intimate visual depiction of an individual--</DELETED>
                <DELETED>    ``(A) with knowledge of or reckless 
                disregard for the lack of consent of the individual to 
                the distribution;</DELETED>
                <DELETED>    ``(B) where what is depicted was not 
                voluntarily exposed by the individual in a public or 
                commercial setting; and</DELETED>
                <DELETED>    ``(C) where what is depicted is not a 
                matter of public concern.</DELETED>
        <DELETED>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.</DELETED>
        <DELETED>    ``(2) Minors.--Except as provided in subsection 
        (d), it shall be unlawful to knowingly mail, or to 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.</DELETED>
<DELETED>    ``(c) Penalty.--</DELETED>
        <DELETED>    ``(1) In general.--Any person who violates 
        subsection (b), or attempts or conspires to do so, shall be 
        fined under this title, imprisoned not more than 5 years, or 
        both.</DELETED>
        <DELETED>    ``(2) Forfeiture.--</DELETED>
                <DELETED>    ``(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--</DELETED>
                        <DELETED>    ``(i) any material distributed in 
                        violation of this section;</DELETED>
                        <DELETED>    ``(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</DELETED>
                        <DELETED>    ``(iii) any property, real or 
                        personal, used or intended to be used to commit 
                        or to facilitate the commission of such 
                        offense.</DELETED>
                <DELETED>    ``(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).</DELETED>
        <DELETED>    ``(3) Restitution.--Restitution shall be available 
        as provided in section 2264 of title 18, United States 
        Code.</DELETED>
<DELETED>    ``(d) Exceptions.--</DELETED>
        <DELETED>    ``(1) Law enforcement, lawful reporting, and other 
        legal proceedings.--This section--</DELETED>
                <DELETED>    ``(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;</DELETED>
                <DELETED>    ``(B) shall not apply in the case of an 
                individual acting in good faith to report unlawful 
                activity or in pursuance of a legal or professional or 
                other lawful obligation; and</DELETED>
                <DELETED>    ``(C) shall not apply in the case of a 
                document production or filing associated with a legal 
                proceeding.</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(e) Threats.--Any person who threatens to commit an 
offense under subsection (b) shall be punished as provided in 
subsection (c).</DELETED>
<DELETED>    ``(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.</DELETED>
<DELETED>    ``(g) Civil Forfeiture.--The following shall be subject to 
forfeiture to the United States in accordance with provisions of 
chapter 46 and no property right shall exist in them:</DELETED>
        <DELETED>    ``(1) Any material distributed in violation of 
        this chapter.</DELETED>
        <DELETED>    ``(2) Any property, real or personal, that was 
        used, in any manner, to commit or to facilitate the commission 
        of a violation involving intimate visual depictions or visual 
        depictions of a nude minor under this section or a conspiracy 
        of a violation involving intimate visual depictions or visual 
        depictions of a nude minor under this section.</DELETED>
        <DELETED>    ``(3) Any property, real or personal, 
        constituting, or traceable to the gross proceeds obtained or 
        retained in connection with or as a result of a violation 
        involving intimate visual depictions or visual depictions of a 
        nude minor under this section, a conspiracy of a violation 
        involving intimate visual depictions or visual depictions of a 
        nude minor under this section.</DELETED>
<DELETED>    ``(h) 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.''.</DELETED>
<DELETED>    (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:</DELETED>

<DELETED>``1802. Certain activities relating to intimate visual 
                            depictions.''.

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 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 has attained 18 years of age at the 
        time the intimate visual depiction is created and--
                    ``(A) who is depicted engaging in sexually explicit 
                conduct; or
                    ``(B) whose genitals, anus, pubic area, or female 
                nipple are unclothed and visible.
            ``(4) 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.
            ``(5) Sexually explicit conduct.--The term `sexually 
        explicit conduct' has the meaning given that term in section 
        2256(2)(A).
    ``(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) with knowledge of the lack of consent of the 
                individual to the distribution;
                    ``(B) where what is depicted was not voluntarily 
                exposed by the individual in a public or commercial 
                setting; and
                    ``(C) where what is depicted is not a matter of 
                public concern.
        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) 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.--Any person who violates subsection (b), 
        or attempts or conspires to do so, shall be fined under this 
        title, imprisoned not more than 5 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 property, real or personal, 
                        used or intended to be used to commit or to 
                        facilitate the commission of such offense.
                    ``(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;
                    ``(B) shall not apply in the case of an individual 
                acting in good faith to report unlawful or unsolicited 
                activity or in pursuance of a legal or professional or 
                other lawful obligation; and
                    ``(C) shall not apply in the case 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 threatens to commit an offense under 
subsection (b) 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.
                                                        Calendar No. 78

118th CONGRESS

  1st Session

                                 S. 412

_______________________________________________________________________

                                 A BILL

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.

_______________________________________________________________________

                              May 17, 2023

                       Reported with an amendment