[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.

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