[Congressional Record Volume 170, Number 17 (Tuesday, January 30, 2024)]
[Senate]
[Pages S289-S290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. DURBIN (for himself, Mr. Graham, Mr. Hawley, and Ms.
Klobuchar):
S. 3696. A bill to improve rights to relief for individuals affected
by non-consensual activities involving intimate digital forgeries, and
for other purposes; to the Committee on the Judiciary.
Mr. DURBIN. Madam President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3696
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 ``Disrupt Explicit Forged
Images and Non-Consensual Edits Act of 2024'' or the
``DEFIANCE Act of 2024''.
SEC. 2. CIVIL ACTION RELATING TO DISCLOSURE OF INTIMATE
IMAGES.
(a) Definitions.--Section 1309(a) of the Consolidated
Appropriations Act, 2022 (15 U.S.C. 6851(a)) is amended--
(1) in paragraph (2), by inserting ``competent,'' after
``conscious,'';
(2) by redesignating paragraphs (5) and (6) as paragraphs
(6) and (7), respectively;
(3) by redesignating paragraph (3) as paragraph (5);
(4) by inserting after paragraph (2) the following:
``(3) Digital forgery.--The term `digital forgery' means
any intimate visual depiction of an identifiable individual
created through the use of software, machine learning,
artificial intelligence, or any other computer-generated or
technological means, including by adapting, modifying,
manipulating, or altering an authentic visual depiction, to
appear to a reasonable person to be indistinguishable from an
authentic visual depiction of the individual, regardless of
whether the visual depiction indicates, through a label or
some other form of information published with the visual
depiction, that the visual depiction is not authentic.'';
(5) in paragraph (5), as so redesignated--
(A) by striking ``(5) Depicted'' and inserting ``(5)
Identifiable''; and
(B) by striking ``depicted individual'' and inserting
``identifiable individual''; and
(6) in paragraph (6)(A), as so redesignated--
(A) in clause (i), by striking ``; or'' and inserting a
semicolon;
(B) in clause (ii)--
(i) in subclause (I), by striking ``individual;'' and
inserting ``individual; or''; and
(ii) by striking subclause (III); and
(C) by adding at the end the following:
``(iii) an identifiable individual engaging in sexually
explicit conduct; and''.
(b) Civil Action.--Section 1309(b) of the Consolidated
Appropriations Act, 2022 (15 U.S.C. 6851(b)) is amended--
(1) in paragraph (1)--
(A) by striking paragraph (A) and inserting the following:
``(A) In general.--Except as provided in paragraph (5)--
``(i) an identifiable individual whose intimate visual
depiction is disclosed, in or affecting interstate or foreign
commerce or using any means or facility of interstate or
foreign commerce, without the consent of the identifiable
individual, where such disclosure was made by a person who
knows or recklessly disregards that the identifiable
individual has not consented to such disclosure, may bring a
civil action against that person in an appropriate district
court of the United States for relief as set forth in
paragraph (3);
``(ii) an identifiable individual who is the subject of a
digital forgery may bring a civil action in an appropriate
district court of the United States for relief as set forth
in paragraph (3) against any person that knowingly produced
or possessed the digital forgery with intent to disclose it,
or knowingly disclosed or solicited the digital forgery, if--
``(I) the identifiable individual did not consent to such
production, disclosure, solicitation, or possession;
``(II) the person knew or recklessly disregarded that the
identifiable individual did not consent to such production,
disclosure, solicitation, or possession; and
``(III) such production, disclosure, solicitation, or
possession is in or affects interstate or foreign commerce or
uses any means or facility of interstate or foreign commerce;
and
``(iii) an identifiable individual who is the subject of a
digital forgery may bring a civil action in an appropriate
district court of the United States for relief as set forth
in paragraph (3) against any person that knowingly produced
the digital forgery if--
``(I) the identifiable individual did not consent to such
production;
``(II) the person knew or recklessly disregarded that the
identifiable individual did not consent to such production;
and
``(III) such production is in or affects interstate or
foreign commerce or uses any means or facility of interstate
or foreign commerce.''; and
(B) in subparagraph (B)--
(i) in the heading, by inserting ``identifiable'' before
``individuals''; and
(ii) by striking ``an individual who is under 18 years of
age, incompetent, incapacitated, or deceased, the legal
guardian of the individual'' and inserting ``an identifiable
individual who is under 18 years of age, incompetent,
incapacitated, or deceased, the legal guardian of the
identifiable individual'';
(2) in paragraph (2)--
(A) in subparagraph (A)--
(i) by inserting ``identifiable'' before ``individual'';
(ii) by striking ``depiction'' and inserting ``intimate
visual depiction or digital forgery''; and
(iii) by striking ``distribution'' and inserting
``disclosure, solicitation, or possession''; and
(B) in subparagraph (B)--
(i) by inserting ``identifiable'' before individual;
(ii) by inserting ``or digital forgery'' after each place
the term ``depiction'' appears; and
[[Page S290]]
(iii) by inserting ``, solicitation, or possession'' after
``disclosure'';
(3) by redesignating paragraph (4) as paragraph (5);
(4) by striking paragraph (3) and inserting the following:
``(3) Relief.--In a civil action filed under this section--
``(A) an identifiable individual may recover the actual
damages sustained by the individual or liquidated damages in
the amount of $150,000, and the cost of the action, including
reasonable attorney's fees and other litigation costs
reasonably incurred; and
``(B) the court may, in addition to any other relief
available at law, order equitable relief, including a
temporary restraining order, a preliminary injunction, or a
permanent injunction ordering the defendant to cease display
or disclosure of the intimate visual depiction or digital
forgery.
``(4) Preservation of privacy.--In a civil action filed
under this section, the court may issue an order to protect
the privacy of a plaintiff, including by--
``(A) permitting the plaintiff to use a pseudonym;
``(B) requiring the parties to redact the personal
identifying information of the plaintiff from any public
filing, or to file such documents under seal; and
``(C) issuing a protective order for purposes of discovery,
which may include an order indicating that any intimate
visual depiction or digital forgery shall remain in the care,
custody, and control of the court.'';
(5) in paragraph (5)(A), as so redesignated--
(A) by striking ``image'' and inserting ``visual depiction
or digital forgery''; and
(B) by striking ``depicted'' and inserting
``identifiable''; and
(6) by adding at the end the following:
``(6) Statute of limitations.--Any action commenced under
this section shall be barred unless the complaint is filed
not later than 10 years from the later of--
``(A) the date on which the identifiable individual
reasonably discovers the violation that forms the basis for
the claim; or
``(B) the date on which the identifiable individual reaches
18 years of age.
``(7) Duplicative recovery barred.--No relief may be
ordered under paragraph (3) against a person who is subject
to a judgment under section 2255 of title 18, United States
Code, for the same conduct involving the same identifiable
individual and the same intimate visual depiction or digital
forgery.''.
(c) Continued Applicability of Federal, State, and Tribal
Law.--
(1) In general.--This Act shall not be construed to impair,
supersede, or limit a provision of Federal, State, or Tribal
law.
(2) No preemption.--Nothing in this Act shall prohibit a
State or Tribal government from adopting and enforcing a
provision of law governing nonconsensual activity involving a
digital forgery, as defined in section 1309(a) of the
Consolidated Appropriations Act, 2022 (15 U.S.C. 6851(a)), as
amended by this Act, that is at least as protective of the
rights of a victim as this Act.
SEC. 3. SEVERABILITY.
If any provision of this Act, an amendment made by this
Act, or the application of such a provision or amendment to
any person or circumstance, is held to be unconstitutional,
the remaining provisions of and amendments made by this Act,
and the application of the provision or amendment held to be
unconstitutional to any other person or circumstance, shall
not be affected thereby.
____________________