[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4409 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  2d Session
                                S. 4409

  To prohibit the disclosure of intimate digital depictions, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 23, 2024

    Ms. Hassan (for herself, Mr. Cornyn, Ms. Butler, and Mr. King) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To prohibit the disclosure of intimate digital depictions, 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 ``Preventing Deepfakes of Intimate 
Images Act''.

SEC. 2. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE DIGITAL 
              DEPICTIONS.

    Section 1309 of the Violence Against Women Act Reauthorization Act 
of 2022 (15 U.S.C. 6851) is amended--
            (1) in the heading, by striking ``images'' and inserting 
        ``depictions'';
            (2) in subsection (a)--
                    (A) by redesignating paragraphs (2), (3), (4), (5), 
                and (6) as paragraphs (3), (5), (6), (9), and (10), 
                respectively;
                    (B) by inserting after paragraph (1) the following:
            ``(2) 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 of title 18, United 
                States Code;
                    ``(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)).'';
                    (C) by inserting after paragraph (3), as so 
                redesignated, the following:
            ``(4) Covered intimate depiction.--The term `covered 
        intimate depiction' means an intimate visual depiction or an 
        intimate digital depiction.'';
                    (D) in paragraph (5), as so redesignated--
                            (i) by striking ``means'' and inserting the 
                        following--
                    ``(A) with respect to an intimate visual depiction, 
                means'';
                            (ii) by striking ``in an intimate visual 
                        depiction'' and inserting ``in the intimate 
                        visual depiction'';
                            (iii) by striking ``the visual depiction'' 
                        and inserting ``the intimate visual 
                        depiction'';
                            (iv) by striking the period at the end and 
                        inserting ``; and''; and
                            (v) by adding at the end the following:
                    ``(B) with respect to an intimate digital 
                depiction, means an individual who, as a result of 
                digitization or by means of digital manipulation, 
                appears in whole or in part in the intimate digital 
                depiction and who is identifiable by virtue of the 
                individual's face, likeness, or other distinguishing 
                characteristic, such as a unique birthmark or other 
                recognizable feature, or from information displayed in 
                connection with the intimate digital depiction.'';
                    (E) by inserting after paragraph (6), as so 
                redesignated, the following:
            ``(7) Information content provider.--The term `information 
        content provider' has the meaning given the term in section 230 
        of the Communications Act of 1934 (47 U.S.C. 230).
            ``(8) Intimate digital depiction.--The term `intimate 
        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 
        digitization or 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.''; and
                    (F) in paragraph (9), as so redesignated--
                            (i) in subparagraph (A)--
                                    (I) in clause (i), by striking 
                                ``or'' at the end;
                                    (II) in clause (ii)(I), by adding 
                                ``or'' at the end;
                                    (III) by redesignating subclause 
                                (III) of clause (ii) as clause (iii) 
                                and adjusting the margin accordingly; 
                                and
                                    (IV) in clause (iii), as so 
                                redesignated, by striking ``conduct 
                                and'' and inserting ``conduct; and''; 
                                and
                            (ii) in subparagraph (B)(ii), by inserting 
                        ``give'' before ``consent''; and
            (3) in subsection (b)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A)--
                                    (I) by inserting after ``whose 
                                intimate visual depiction is 
                                disclosed,'' the following: ``or who is 
                                the subject of an intimate digital 
                                depiction that is disclosed,''; and
                                    (II) by striking ``consented'' and 
                                inserting ``given consent''; and
                            (ii) in subparagraph (B)--
                                    (I) by striking ``an individual'' 
                                and inserting ``a depicted 
                                individual'';
                                    (II) by striking ``the individual'' 
                                and inserting ``the depicted 
                                individual'';
                                    (III) by striking ``identifiable 
                                individual's'' and inserting ``depicted 
                                individual's''; and
                                    (IV) by striking ``identifiable 
                                individual's''' and inserting 
                                ``depicted individual's'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A)--
                                    (I) by striking ``consented'' each 
                                place it appears and inserting ``gave 
                                consent'';
                                    (II) by inserting ``covered 
                                intimate'' before ``depiction''; and
                                    (III) by striking ``distribution; 
                                and'' and inserting ``disclosure;'';
                            (ii) by redesignating subparagraph (B) as 
                        subparagraph (C);
                            (iii) by inserting after subparagraph (A) 
                        the following:
                    ``(B) consent shall be deemed validly given only if 
                it is set forth in an agreement that--
                            ``(i) is written in plain language signed 
                        knowingly and voluntarily by the depicted 
                        individual; and
                            ``(ii) includes a general description of 
                        the covered intimate depiction and, if 
                        applicable, the audiovisual work into which it 
                        will be incorporated; and''; and
                            (iv) in subparagraph (C), as so 
                        redesignated--
                                    (I) by striking ``intimate visual'' 
                                each place it appears and inserting 
                                ``covered intimate''; and
                                    (II) by striking ``person 
                                consented'' and inserting ``individual 
                                gave consent'';
                    (C) in paragraph (3)(A)--
                            (i) by striking clause (i) and inserting 
                        the following:
                            ``(i) an individual may recover--
                                    ``(I) an amount equal to the 
                                monetary gain made by the defendant 
                                from the disclosure of the covered 
                                intimate depiction;
                                    ``(II) either--
                                            ``(aa) the actual damages 
                                        sustained by the individual as 
                                        a result of the disclosure of 
                                        the covered intimate depiction, 
                                        including damages for emotional 
                                        distress; or
                                            ``(bb) liquidated damages 
                                        in the amount of $150,000;
                                    ``(III) punitive damages; and
                                    ``(IV) the cost of the action, 
                                including reasonable attorney fees and 
                                other litigation costs reasonably 
                                incurred; and''; and
                            (ii) in clause (ii), by striking 
                        ``visual'';
                    (D) in paragraph (4)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``An identifiable individual'' 
                        and inserting ``A depicted individual'';
                            (ii) in subparagraph (A), by striking ``an 
                        intimate image'' and inserting ``a covered 
                        intimate depiction'';
                            (iii) in subparagraph (C), by striking 
                        ``public concern or public interest'' and 
                        inserting ``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''; and
                            (iv) in subparagraph (D), by striking 
                        ``identifiable individual'' and inserting 
                        ``depicted individual''; and
                    (E) by adding at the end the following:
            ``(5) In camera.--A court may authorize an in camera 
        proceeding under this subsection.
            ``(6) Disclaimers.--It shall not be a defense to an action 
        under this subsection that there is a disclaimer stating that 
        the covered intimate depiction of the depicted individual was 
        unauthorized or that the depicted individual did not 
        participate in the creation or development of the material.
            ``(7) Limitations.--For purposes of this subsection, a 
        provider of a communications service shall not be held liable 
        on account of--
                    ``(A) any action voluntarily taken in good faith to 
                restrict access to or availability of a covered 
                intimate depiction; or
                    ``(B) any action taken to enable or make available 
                to information content providers or other persons the 
                technical means to restrict access to a covered 
                intimate depiction.''.

SEC. 3. CRIMINAL ACTION.

    (a) In General.--Chapter 110 of title 18, United States Code, is 
amended by inserting after section 2252C the following:
``Sec. 2252D. Disclosure of intimate digital depictions
    ``(a) Definitions.--
            ``(1) Definitions of terms defined in civil action 
        statute.--In this section, the terms `communications service', 
        `consent', `depicted individual', `disclose', `information 
        content provider', and `sexually explicit conduct' have the 
        meanings given those terms in section 1309 of the Violence 
        Against Women Act Reauthorization Act of 2022 (15 U.S.C. 6851).
            ``(2) Other terms.--In this section:
                    ``(A) Covered digital depiction.--The term `covered 
                digital depiction' means--
                            ``(i) an intimate digital depiction; or
                            ``(ii) a digital depiction of a nude minor.
                    ``(B) Digital depiction of a nude minor.--The term 
                `digital depiction of a nude minor' means any digital 
                visual depiction (as that term is defined in section 
                2256(5))--
                            ``(i) of an individual who--
                                    ``(I) is recognizable by an 
                                individual other than the depicted 
                                individual from the visual depiction 
                                itself or information or text displayed 
                                in connection with the visual 
                                depiction; and
                                    ``(II) was under 18 years of age 
                                when the visual depiction was created; 
                                and
                            ``(ii) in which the anus, genitals, or 
                        pubic area, or post-pubescent female nipple, of 
                        the depicted individual are unclothed, visible, 
                        and displayed in a manner that does not 
                        constitute sexually explicit conduct.
                    ``(C) Intimate digital depiction.--The term 
                `intimate digital depiction' has the meaning given the 
                term in section 1309 of the Violence Against Women Act 
                Reauthorization Act of 2022 (15 U.S.C. 6851), except 
                that it only includes such a depiction of an individual 
                who was not less than 18 years of age when the 
                depiction was created.
    ``(b) Offenses.--
            ``(1) Intimate digital depictions.--Except as provided in 
        paragraph (3), it shall be unlawful to knowingly disclose or 
        threaten to disclose, through the mail or using any means or 
        facility of interstate or foreign commerce or affecting 
        interstate or foreign commerce, an intimate digital depiction 
        of an individual--
                    ``(A) with knowledge of, or reckless disregard for, 
                the lack of consent of the depicted individual to the 
                disclosure of the intimate digital depiction;
                    ``(B) with knowledge of, or reckless disregard for, 
                the lack of consent of the depicted individual to the 
                creation of the intimate digital depiction;
                    ``(C) with intent to harass, annoy, threaten, 
                alarm, or cause substantial harm to the finances or 
                reputation of the depicted individual; or
                    ``(D) with actual knowledge that, or reckless 
                disregard for whether, the disclosure or threatened 
                disclosure will cause physical, emotional, 
                reputational, or economic harm to the depicted 
                individual.
            ``(2) Digital depictions of nude minors.--Except as 
        provided in paragraph (3), 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 digital 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.
            ``(3) Exceptions.--
                    ``(A) Law enforcement, lawful reporting, and other 
                legal proceedings.--Paragraphs (1) and (2)--
                            ``(i) do 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;
                            ``(ii) 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
                            ``(iii) shall not apply in the case of a 
                        good faith and relevant document production or 
                        filing associated with a legal proceeding.
                    ``(B) Service providers.--Paragraphs (1) and (2) 
                shall not apply to any provider of a communications 
                service with regard to content provided by another 
                information content provider, unless--
                            ``(i) in the case of an intimate digital 
                        depiction, the provider of the communications 
                        service distributes the intimate digital 
                        depiction with knowledge of the lack of consent 
                        of the depicted individual; or
                            ``(ii) in the case of a digital depiction 
                        of a nude minor, the provider of the 
                        communications service knowingly distributes 
                        the digital depiction of a nude minor.
                    ``(C) Matters of public concern.--Paragraphs (1) 
                and (2) shall not apply with respect to a covered 
                digital depiction that is a matter of public concern.
                    ``(D) Support for victims.--Paragraphs (1) and (2) 
                shall not apply to the distribution of a covered 
                digital depiction if the distribution is made 
                reasonably and in good faith to--
                            ``(i) seek support or help with respect to 
                        the unsolicited receipt of the covered digital 
                        depiction; or
                            ``(ii) assist the depicted individual.
    ``(c) Penalties.--
            ``(1) Fine and imprisonment.--Any person who violates 
        subsection (b) shall be--
                    ``(A) fined under this title, imprisoned for not 
                more than 2 years, or both; or
                    ``(B) fined under this title, imprisoned for not 
                more than 10 years, or both, in the case of a violation 
                in which the disclosure or threatened disclosure of the 
                covered digital depiction could be reasonably expected 
                to--
                            ``(i) 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
                            ``(ii) facilitate violence.
            ``(2) Forfeiture.--
                    ``(A) In general.--The court, in imposing a 
                sentence on any person convicted of a violation of 
                subsection (b), shall order, in addition to any other 
                sentence imposed and irrespective of any provision of 
                State law, that the person forfeit to the United 
                States--
                            ``(i) any material distributed in violation 
                        of that subsection;
                            ``(ii) the person's interest in property, 
                        real or personal, constituting or derived from 
                        any gross proceeds of the violation, or any 
                        property traceable to such property, obtained 
                        or retained directly or indirectly as a result 
                        of the violation; and
                            ``(iii) any property, real or personal, 
                        used or intended to be used to commit or 
                        facilitate the commission of the violation.
                    ``(B) Procedures.--Section 413 of the Controlled 
                Substances Act (21 U.S.C. 853), with the exception of 
                subsections (a) and (d), shall apply to the criminal 
                forfeiture of property under subparagraph (A) of this 
                paragraph.
            ``(3) Restitution.--Section 2264 shall apply to an offense 
        under subsection (b) of this section in the same manner as such 
        section 2264 applies to an offense under chapter 110A.
    ``(d) Disclaimers.--It shall not be a defense to a prosecution 
under this section that there is a disclaimer stating that the covered 
digital depiction of the depicted individual was unauthorized or that 
the depicted individual did not participate in the creation or 
development of the material.
    ``(e) Limitations.--For purposes of this section, a provider of a 
communications service shall not be held liable on account of--
            ``(1) any action voluntarily taken in good faith to 
        restrict access to or availability of a covered digital 
        depiction; or
            ``(2) any action taken to enable or make available to an 
        information content provider or another person the technical 
        means to restrict access to a covered digital depiction.''.
    (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:

``2252D. Disclosure of intimate digital depictions.''.
                                 <all>