118 S474 RS: Revising Existing Procedures On Reporting via Technology Act
U.S. Senate
2023-06-06
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
Calendar No. 85
118th CONGRESS
1st Session
S. 474
IN THE SENATE OF THE UNITED STATES
February 16, 2023
Mrs. Blackburn (for herself, Mr. Ossoff, and Mr. Lee) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
June 6, 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 amend title 18, United States Code, to strengthen reporting to the CyberTipline related to online sexual exploitation of children, to modernize liabilities for such reports, to preserve the contents of such reports for 1 year, and for other purposes.
1.

Short title
This Act may be cited as the “Revising Existing Procedures On Reporting via Technology Act” or the “REPORT Act”.
2.

Limited liability modernization
(a)

Amendments
Section 2258B of title 18, United States Code, is amended—
(1)
in the section heading, by striking “providers or domain name registrars” and inserting “the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing and Exploited Children”;
(2)
in subsection (b)—
(A)
in the matter preceding paragraph (1), by inserting “or charge” after “a claim”; and
(B)
in paragraph (2)(C), by striking “this section,”; and
(3)
by adding at the end the following:
“(d)

Limited liability for NCMEC-Contracted vendors
(1)

In general
Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against a vendor contractually retained and designated by NCMEC to support the clearinghouse role of NCMEC, as set forth in section 404(b) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)).
(2)

Intentional, reckless, or other misconduct
Paragraph (1) shall not apply to a claim or charge if the vendor—
(A)
engaged in—
(i)
intentional misconduct;
(ii)
negligent conduct; or
(iii)
conduct not authorized under the contract of the vendor with NCMEC to support the clearinghouse role of NCMEC, as set forth in section 404(b) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)); or
(B)
acted, or failed to act—
(i)
with actual malice;
(ii)
with reckless disregard to a substantial risk of causing physical injury without legal justification; or
(iii)
for a purpose unrelated to the performance of any responsibility or function—
(I)
set forth in paragraph (1); or
(II)
under sections 2258A, 2258C, 2702, or 2703.
(3)

Minimizing access by vendor
With respect to any visual depiction of child pornography stored or transferred by a vendor contractually retained and designated by NCMEC to support the clearing house role of NCMEC, as set forth in section 404(b) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)), a vendor shall minimize the number of employees that may be able to obtain access to such visual depiction.
(e)

Limited liability for minors, and persons acting on behalf of a minor, reporting visual depictions of apparent child pornography in which the minor is depicted
(1)

In general
Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against a minor, or a person acting on behalf of a minor, arising from a report to the CyberTipline of NCMEC by the minor or the person acting on behalf of a minor of information that relates to a visual depiction of apparent child pornography in which the minor is depicted, including a copy of the visual depiction of the minor.
(2)

Intentional, reckless, or other misconduct
Paragraph (1) shall not apply to a claim or charge if the minor, or person acting on behalf of the minor—
(A)
engaged in—
(i)
intentional misconduct in submitting the report to the CyberTipline of NCMEC of information that relates to a visual depiction of apparent child pornography in which the minor is depicted, including a copy of the visual depiction of the minor; or
(ii)
negligent conduct; or
(B)
acted, or failed to act—
(i)
with actual malice; or
(ii)
with reckless disregard to a substantial risk of causing physical injury without legal justification.
(3)

Minimizing access
With respect to any visual depiction of child pornography reported to the CyberTipline of NCMEC by a minor, or a person acting on behalf of a minor, in which the minor is depicted, NCMEC shall minimize access to the visual depiction and ensure the appropriate deletion of the visual depiction, as set forth in section 2258D.”.
(b)

Applicability
The amendment made by subsection (a) shall apply with respect to a civil claim or criminal charge that is filed on or after the date of enactment of this Act.
(c)

Table of sections amendment
The table of sections for chapter 110 of title 18, United States Code, is amended by striking the item relating to section 2258B and inserting the following:
“2258B. Limited liability for the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing and Exploited Children.”.
3.

Preservation of reports to CyberTipline related to online sexual exploitation of children
Section 2258A(h) of title 18, United States Code, is amended—
(1)
in paragraph (1), by striking “90 days” and inserting “1 year”; and
(2)
by adding at the end the following:
“(5)

Extension of preservation
A provider of a report to the CyberTipline under subsection (a)(1) may voluntarily preserve the contents provided in the report (including any comingled content described in paragraph (2)) for longer than 1 year after the submission to the CyberTipline for the purpose of reducing the proliferation of online child sexual exploitation or preventing the online sexual exploitation of children.
(6)

Method of preservation
Not later than 1 year after the date of enactment of this paragraph, a provider of a report to the CyberTipline under subsection (a)(1) shall preserve materials under this subsection in a manner that is consistent with the most recent version of the Cybersecurity Framework developed by the National Institute of Standards and Technology, or any successor thereto.”.
4.

Strengthening of duty to report apparent violations to CyberTipline related to online exploitation of children
(a)

Amendments
Section 2258A of title 18, United States Code, is amended—
(1)
in subsection (a)—
(A)
in paragraph (1)(A)—
(i)
in the matter preceding clause (i), by inserting “shall” after “provider”;
(ii)
in clause (i), by striking “shall,”; and
(iii)
in clause (ii), by striking “may,”; and
(B)
in paragraph (2)(A), by inserting “, of section 1591 (if the violation involves a minor), or of 2422(b)” after “child pornography”; and
(2)
in subsection (e)—
(A)
in paragraph (1), by striking “$150,000” and inserting “$850,000 in the case of a provider with not less than 100,000,000 monthly active users or $600,000 in the case of a provider with less than 100,000,000 monthly active users”; and
(B)
in paragraph (2), by striking “$300,000” and inserting “$1,000,000 in the case of a provider with not less than 100,000,000 monthly active users or $850,000 in the case of a provider with less than 100,000,000 monthly active users”.
(b)

Guidance
Not later than 180 days after the date of enactment of this Act, the National Center for Missing & Exploited Children shall issue guidance to providers required to take actions described in section 2258A(a)(1)(B) of title 18, United States Code, on the facts or circumstances that constitute an apparent violation of section 1591 of that title and of section 2422(b) of that title.
1.

Short title
This Act may be cited as the “Revising Existing Procedures On Reporting via Technology Act” or the “REPORT Act”.
2.

Limited liability modernization
(a)

Amendments
Section 2258B of title 18, United States Code, is amended—
(1)
in the section heading, by striking “providers or domain name registrars” and inserting “the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing & Exploited Children”;
(2)
in subsection (b)—
(A)
in the matter preceding paragraph (1), by inserting “or charge” after “a claim”; and
(B)
in paragraph (2)(C), by striking “this section,”; and
(3)
by adding at the end the following:
“(d)

Limited liability for NCMEC-Contracted vendors
(1)

In general
Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against a vendor contractually retained and designated by NCMEC to support the duties of NCMEC under section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)).
(2)

Intentional, reckless, or other misconduct
Paragraph (1) shall not apply to a claim or charge if the vendor—
(A)
engaged in—
(i)
intentional misconduct; or
(ii)
negligent conduct; or
(B)
acted, or failed to act—
(i)
with actual malice;
(ii)
with reckless disregard to a substantial risk of causing injury without legal justification; or
(iii)
for a purpose unrelated to the performance of any responsibility or function—
(I)
set forth in paragraph (1); or
(II)
pursuant to sections 2258A, 2258C, 2702, or 2703.
(3)

Minimizing access by vendor
With respect to any visual depiction provided pursuant to the duties of NCMEC under section 404(b)(1)(K) of the Juvenile Justice and Delinquency Prevention Act of 1974 (34 U.S.C. 11293(b)(1)(K)) that is stored or transferred by a vendor contractually retained and designated by NCMEC to support such duties of NCMEC, a vendor shall—
(A)
minimize the number of employees that may be able to obtain access to such visual depiction; and
(B)
employ end-to-end encryption for data storage and transfer functions, or an equivalent technological standard.
(e)

Limited liability for reporting apparent child pornography by an individual depicted in the child pornography as a minor, or a representative of such individual
(1)

In general
Except as provided in paragraph (2), a civil claim or criminal charge may not be brought in any Federal or State court against an individual depicted in child pornography as a minor, or a representative of such individual, arising from a report to the NCMEC CyberTipline by the individual, or the representative of such individual, of information that relates to the child pornography in which the individual is depicted as a minor, including a copy of the child pornography.
(2)

Intentional, reckless, or other misconduct
Paragraph (1) shall not apply to a claim or charge if the individual, or the representative of such individual—
(A)
engaged in—
(i)
intentional misconduct;
(ii)
negligent conduct; or
(iii)
any activity which constitutes a violation of section 2251; or
(B)
acted, or failed to act—
(i)
with actual malice; or
(ii)
with reckless disregard to a substantial risk of causing injury without legal justification.
(3)

Minimizing access
With respect to any child pornography reported to the NCMEC CyberTipline by an individual depicted in the child pornography as a minor, or a representative of such individual, NCMEC shall minimize access to the child pornography and ensure the appropriate deletion of the child pornography, as set forth in section 2258D.
(4)

Definition
For purposes of this subsection, the term representative, with respect to an individual depicted in child pornography—
(A)
means—
(i)
the parent or legal guardian of the individual, if the individual is under 18 years of age;
(ii)
the legal guardian or other person appointed by a court to represent the individual;
(iii)
a legal representative retained by the individual;
(iv)
a representative of the estate of the individual; or
(v)
a person who is a mandated reporter under section 226(a)(1) of the Victims of Child Abuse Act of 1990 (34 U.S.C. 20341(a)(1)); and
(B)
does not include a person who engaged in any activity which constitutes a violation of section 2251.”.
(b)

Applicability
The amendments made by subsection (a) shall apply with respect to a civil claim or criminal charge that is filed on or after the date of enactment of this Act.
(c)

Table of sections amendment
The table of sections for chapter 110 of title 18, United States Code, is amended by striking the item relating to section 2258B and inserting the following:
“2258B. Limited liability for the reporting, storage, and handling of certain visual depictions of apparent child pornography to the National Center for Missing & Exploited Children.”.
3.

Preservation of reports to CyberTipline related to online sexual exploitation of children
Section 2258A(h) of title 18, United States Code, is amended—
(1)
in paragraph (1), by striking “90 days” and inserting “1 year”; and
(2)
by adding at the end the following:
“(5)

Extension of preservation
A provider of a report to the CyberTipline under subsection (a)(1) may voluntarily preserve the contents provided in the report (including any comingled content described in paragraph (2)) for longer than 1 year after the submission to the CyberTipline for the purpose of reducing the proliferation of online child sexual exploitation or preventing the online sexual exploitation of children.
(6)

Method of preservation
Not later than 1 year after the date of enactment of this paragraph, a provider of a report to the CyberTipline under subsection (a)(1) shall preserve materials under this subsection in a manner that is consistent with the most recent version of the Cybersecurity Framework developed by the National Institute of Standards and Technology, or any successor thereto.”.
4.

Strengthening of duty to report apparent violations to CyberTipline related to online exploitation of children
(a)

Amendments
Section 2258A of title 18, United States Code, is amended—
(1)
in subsection (a)(2)(A), by inserting “, of section 1591 (if the violation involves a minor), or of 2422(b)” after “child pornography”; and
(2)
in subsection (e)—
(A)
in paragraph (1), by striking “$150,000” and inserting “$850,000 in the case of a provider with not less than 100,000,000 monthly active users or $600,000 in the case of a provider with less than 100,000,000 monthly active users”; and
(B)
in paragraph (2), by striking “$300,000” and inserting “$1,000,000 in the case of a provider with not less than 100,000,000 monthly active users or $850,000 in the case of a provider with less than 100,000,000 monthly active users”.
(b)

Guidelines
Not later than 180 days after the date of enactment of this Act, the National Center for Missing & Exploited Children may issue guidelines, as appropriate, to providers required or permitted to take actions described in section 2258A(a)(1)(B) of title 18, United States Code, on the relevant identifiers for content that may indicate sex trafficking of children, as described in section 1591 of that title, or enticement, as described in section 2422(b) of that title.
February 16, 2023
Reported by Mr. Durbin, with an amendment