[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.
____________________