[Congressional Record Volume 170, Number 99 (Wednesday, June 12, 2024)]
[Senate]
[Pages S4039-S4040]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Unanimous Consent Request--S. 3696

  Mr. DURBIN. Madam President, I rise today in the Senate to pass the 
DEFIANCE Act, a bipartisan bill that provides a remedy for victims of 
nonconsensual sexual exploitation deepfakes.
  I want to thank the Senate cosponsors of this legislation. They 
include my ranking Republican Member, Senator Lindsey Graham, the 
ranking member of the Judiciary Committee, as well as Senators 
Klobuchar, Hawley, King, and Lee. This bill is truly bipartisan.
  I have been proud to partner with New York Congresswoman Alexandria 
Ocasio-Cortez, who introduced this legislation in the House of 
Representatives with four Republican and four Democratic cosponsors. As 
you can see, in both the Senate and the House, this is a bipartisan 
measure. When I describe it, you will understand.
  Sadly, Congresswoman Ocasio-Cortez, herself, is a victim of what is 
known as explicit deepfakes. I commend her for her work and courage to 
create tools for victims in the fight against this despicable conduct.
  The spread of these deplorable deepfakes is like a fire burning out 
of control. What used to take extraordinary technological expertise and 
a lot of time can now be done with the push of a button. Countless apps 
can swap someone's face onto another person's body or can digitally 
remove someone's clothing. These apps are often advertised as harmless 
entertainment. But when explicit images are produced and shared without 
the consent of the person depicted, the harm is very real. The 
exploitation of young children, the exploitation of women is really the 
price that is being paid for this.
  Imagine losing control over your own likeness and identity. Imagine 
how powerless victims feel when they cannot remove the illicit content, 
cannot prevent it from being reproduced, cannot prevent new images from 
being created. The negative consequences to the victims can be 
profound. Victims may draw into silence themselves by withdrawing from 
online spaces and public

[[Page S4040]]

discourse as a protective measure. They may endure threats to their 
employment, education, or reputation; or suffer additional criminal 
activity, such as extortion and stalking. Some experience depression, 
anxiety, and fear of being in public. And in the worst-case scenario, 
victims are driven to suicide.
  Representative Ocasio-Cortez recently described her own reaction to 
being depicted in sexual deepfakes without her consent. She said: 
``There's a shock to seeing images of yourself that someone could think 
are real.'' She described how it resurfaced trauma and haunts her 
thoughts. Once deepfakes are seen, they cannot be unseen. As she put 
it, ``deepfakes are . . . a way of digitizing violent humiliation 
against other people.''
  Prominent women are often the target of nonconsensual sexually 
explicit deepfakes--singers, actors, politicians alike. You cannot 
escape the conclusion that these images are intended to diminish and 
shame women.
  But, sadly, the victims can be anyone. There are many distressing 
reports this year of middle schools and high schools struggling to 
respond to the spread of sexually explicit deepfakes of students.
  In March of this year, at least 22 students at the Richmond-Burton 
High School, in McHenry County, in my home State of Illinois, learned 
they were depicted in deepfakes circulating online. One of the images 
was a doctored version of a photo of two female students taken at the 
school prom. The perpetrator digitally removed their clothes to make it 
appear they were unclothed. The prom is supposed to be a joyous rite of 
passage for teenagers, a happy memory they keep for the rest of their 
lives. Now that memory has been stolen from these two young women.
  Sadly, we are seeing an explosion of images like these. One 
researcher found that the number of nonconsensual pornographic deepfake 
videos available online has increased ninefold in the last 5 years. 
Such videos have been viewed almost 4 billion times--4 billion times.
  Monthly traffic to the top 20 deepfake sites increased by 285 percent 
from July 2020 to July 2023, and search engines directed 25.2 million 
visits to the top five most popular deepfake sites in July 2023 alone.
  Tragically, under the law now, the victims have no legal remedy. Time 
and again, victims are told nothing can be done to help them because 
existing laws simply do not apply to deepfakes. This is not just a gap 
in the law. It is an omission that shows a blatant disregard for the 
trauma to children, women, and girls who are victimized by this crime.
  But this DEFIANCE Act will change that. It will give the victims a 
day in court. Once this bill is signed into law, victims finally will 
have the ability to hold civilly liable those who produce, disclose, 
solicit, or possess sexually explicit deepfakes while knowingly or 
recklessly disregarding that the person depicted did not consent to the 
conduct.

  I am proud to have collaborated with survivor advocates on this bill. 
Their lived experience and leadership have shaped this bill. This bill 
was carefully crafted to comply with the First Amendment.
  As the Center for Democracy and Technology wrote in their letter 
endorsing the bill, it is constitutional because it addresses ``a 
uniquely compelling problem with a narrowly-tailored solution.''
  In addition to the CDT, the DEFIANCE Act is supported by the National 
Center on Sexual Exploitation, the Sexual Violence Prevention 
Association, the National Women's Law Center, My Image My Choice, PACT, 
Rights4Girls, and many others.
  Congress has waited too long to act. Can you imagine, in your own 
family, if it was your wife, your daughter, your niece, or some young 
woman that you love who was exploited this way, who had to see these 
images and try to erase them from their minds, who realize that they 
have no power now under the law, no power to protect themselves? They 
are helplessly exploited and their lives have been changed for the 
worse.
  We waited far too long to act. This is a bipartisan measure in both 
the House and the Senate. It is past time to give victims of 
nonconsensual sexual exploitation and explicit deepfakes the tools they 
need to fight back.
  Madam President, notwithstanding rule XXII, as if in legislative 
session, I ask unanimous consent that the Committee on the Judiciary be 
discharged from further consideration of S. 3696, the Disrupt Explicit 
Forged Images And Non-Consensual Edits Act of 2024, and the Senate 
proceed to its immediate consideration. I further ask consent that the 
Durbin-Grassley substitute amendment at the desk be agreed to; that the 
bill, as amended, be considered read a third time and passed; and that 
the motion to reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Wyoming.
  Ms. LUMMIS. Madam President, reserving the right to object, I 
strongly support the intent behind this legislation. We must combat the 
deeply harmful practice of nonconsensual deepfake pornography. It is as 
serious as the gentleman from Illinois just described.
  But I am troubled that this bill, as currently drafted, is overly 
broad in scope. The expansive definitions and wide net of liability in 
this bill could lead to unintended consequences that stifle American 
technological innovation and development.
  By extending liability to third-party platforms that may unknowingly 
host this illicit content, I worry this bill places an untenable burden 
on online services to constantly police user-generated posts. Even 
platforms making good-faith efforts to remove illegal deepfakes could 
become inundated with frivolous litigation.
  A more prudent approach would be to tailor legislation to focus on 
publishers and knowing distributors. And such legislation exists. It is 
the Cruz-Klobuchar bill. We must ensure that, in our noble efforts to 
prevent abuse, we do not inadvertently impose overbroad restrictions 
and spur excessive lawsuits that would chill the development of 
American emerging technologies.
  I stand ready to work with my colleagues to find this crucial 
balance.
  For these reasons, I object.
  The PRESIDING OFFICER. Objection is heard.
  The majority whip.
  Mr. DURBIN. Madam President, I am disappointed, seriously 
disappointed. When we talk about these young women and young children 
being exploited and have bipartisan legislation before both the House 
and Senate to deal with it, it is important that it be characterized 
properly.
  First, there is no liability under this proposed law for tech 
platforms, despite what the Senator from Wyoming said.
  And, secondly, the idea that the people would suffer with civil 
liability here, when they didn't know what was going on--listen to the 
language of this bill: The victims have the ability to hold civilly 
liable those who produce, disclose, solicit, possess sexually explicit 
deepfakes while knowingly--while knowingly--or recklessly disregarding 
that the person depicted did not consent to the conduct.
  The two major issues raised by the Senator from Wyoming are both 
addressed in this bipartisan measure.
  There are people who will shake their heads and say: Can't the Senate 
even address this issue of the sexual exploitation of children and 
young girls and attempts to ruin their lives? Can't they even agree on 
a bipartisan basis to come up with an answer?
  We did. We have a bill that does it, and it has been stopped.
  We are not going to stop our efforts, Madam President. This is a 
cause worth fighting for, and we are going to really appeal to those 
across America who believe as we do.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.