[Congressional Record Volume 168, Number 157 (Wednesday, September 28, 2022)]
[Senate]
[Page S5347]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 5883. Ms. KLOBUCHAR (for herself and Mr. Burr) submitted an
amendment intended to be proposed to amendment SA 5499 submitted by Mr.
Reed (for himself and Mr. Inhofe) and intended to be proposed to the
bill H.R. 7900, to authorize appropriations for fiscal year 2023 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ____. 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 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) Offense.--
``(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--
``(A) with knowledge of or reckless disregard for 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 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 title 18, United States Code.
``(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 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) 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:
``(1) Any material distributed in violation of this
chapter.
``(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.
``(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.
``(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.''.
(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.''.
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