[Congressional Record Volume 170, Number 114 (Wednesday, July 10, 2024)]
[Senate]
[Pages S4338-S4340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 STOPPING HARMFUL IMAGE EXPLOITATION AND LIMITING DISTRIBUTION ACT OF 
                                  2023

  Mr. WELCH. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 78, S. 412.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 412) to provide that it is unlawful to knowingly 
     distribute private intimate visual depictions with reckless 
     disregard for the individual's lack of consent to the 
     distribution, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary with an 
amendment to strike all after the enacting clause and insert in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Stopping Harmful Image 
     Exploitation and Limiting Distribution Act of 2023'' or the 
     ``SHIELD Act of 2023''.

     SEC. 2. 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 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) Offenses.--
       ``(1) In general.--Except as provided in subsection (d), it 
     shall be unlawful to knowingly mail, or to knowingly 
     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 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.

[[Page S4339]]

     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 knowingly 
     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 this title.
       ``(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 or unsolicited 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) 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.''.
       (c) Conforming Amendment.--Section 2264(a) of title 18, 
     United States Code, is amended by inserting ``, or under 
     section 1802 of this title'' before the period.

  Mr. WELCH. I ask unanimous consent that the committee-reported 
substitute amendment be withdrawn, the Klobuchar substitute amendment, 
which is at the desk, be considered and agreed to, and the bill, as 
amended, be considered read a third time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The committee-reported amendment, in the nature of a substitute, was 
withdrawn.
  The amendment (No. 2248), in the nature of a substitute, was agreed 
to as follows:

                (Purpose: In the nature of a substitute)

        Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Stopping Harmful Image 
     Exploitation and Limiting Distribution Act of 2023'' or the 
     ``SHIELD Act of 2023''.

     SEC. 2. 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--
       ``(A) who has attained 18 years of age at the time the 
     intimate visual depiction is created;
       ``(B) who is recognizable to a third party 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; and
       ``(C)(i) who is depicted engaging in sexually explicit 
     conduct; or
       ``(ii) whose genitals, anus, pubic area, or female nipple 
     are unclothed and visible.
       ``(4) Minor.--The term `minor' has the meaning given that 
     term in section 2256.
       ``(5) Sexually explicit conduct.--The term `sexually 
     explicit conduct' has the meaning given that term in section 
     2256(2)(A).
       ``(6) 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.
       ``(b) Offenses.--
       ``(1) In general.--Except as provided in subsection (d), it 
     shall be unlawful to knowingly mail, or to knowingly 
     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) that was obtained or created under circumstances in 
     which the actor knew or reasonably should have known the 
     individual depicted had a reasonable expectation of privacy;
       ``(B) where what is depicted was not voluntarily exposed by 
     the individual in a public or commercial setting;
       ``(C) where what is depicted is not a matter of public 
     concern; and
       ``(D) if the distribution--
       ``(i) is intended to cause harm; or
       ``(ii) causes harm, including psychological, financial, or 
     reputational harm, to the individual depicted.
     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) Involving minors.--Except as provided in subsection 
     (d), it shall be unlawful to knowingly mail, or to knowingly 
     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.--
       ``(A) Visual depiction of a nude minor.--Any person who 
     violates subsection (b)(2) shall be fined under this title, 
     imprisoned not more than 3 years, or both.
       ``(B) Intimate visual depiction.--Any person who violates 
     subsection (b)(1) shall be fined under this title, imprisoned 
     for not more than 2 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 personal property of the person used, or 
     intended to be used, in any manner or part, to commit or to 
     facilitate the commission of such violation.
       ``(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 this title.

[[Page S4340]]

       ``(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; and
       ``(B) shall not apply to distributions that are made 
     reasonably and in good faith--
       ``(i) to report unlawful or unsolicited activity or in 
     pursuance of a legal or professional or other lawful 
     obligation;
       ``(ii) to seek support or help with respect to the receipt 
     of an unsolicited intimate visual depiction;
       ``(iii) relating to an individual who possesses or 
     distributes a visual depiction of himself or herself engaged 
     in nudity or sexually explicit conduct;
       ``(iv) to assist the depicted individual;
       ``(v) for legitimate medical, scientific, or educational 
     purposes; or
       ``(vi) as part 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 intentionally threatens to 
     commit an offense under subsection (b) for the purpose of 
     intimidation, coercion, extortion, or to create mental 
     distress 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) 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.''.
       (c) Conforming Amendment.--Section 2264(a) of title 18, 
     United States Code, is amended by inserting ``, or under 
     section 1802 of this title'' before the period.

  The bill, as amended, was ordered to be engrossed for a third reading 
and was read the third time.
  Mr. WELCH. I know of no further debate on the bill.
  The PRESIDING OFFICER. Is there further debate on the bill?
  Hearing none, the bill having been read the third time, the question 
is, Shall the bill pass?
  The bill (S. 412), as amended, was passed.
  Mr. WELCH. I ask that the motion to reconsider be considered made and 
laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________