[Congressional Record Volume 170, Number 115 (Thursday, July 11, 2024)]
[Senate]
[Pages S4759-S4761]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2437. Mr. DURBIN submitted an amendment intended to be proposed by 
him to the bill S. 4638, to authorize appropriations for fiscal year 
2025 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. [__]. DEFIANCE ACT OF 2024.

       (a) Short Title.--This section may be cited as the 
     ``Disrupt Explicit Forged Images and Non-Consensual Edits Act 
     of 2024'' or the ``DEFIANCE Act of 2024''.
       (b) Findings.--Congress finds that:
       (1) Digital forgeries, often called deepfakes, are 
     synthetic images and videos that look realistic. The 
     technology to create digital forgeries is now ubiquitous and 
     easy to use. Hundreds of apps are available that can quickly 
     generate digital forgeries without the need for any technical 
     expertise.
       (2) Digital forgeries can be wholly fictitious but can also 
     manipulate images of real people to depict sexually intimate 
     conduct that did not occur. For example, some digital 
     forgeries will paste the face of an individual onto the body 
     of a real or fictitious

[[Page S4760]]

     individual who is nude or who is engaging in sexual activity. 
     Another example is a photograph of an individual that is 
     manipulated to digitally remove the clothing of the 
     individual so that the person appears to be nude.
       (3) The individuals depicted in such digital forgeries are 
     profoundly harmed when the content is produced, disclosed, or 
     obtained without the consent of those individuals. These 
     harms are not mitigated through labels or other information 
     that indicates that the depiction is fake.
       (4) It can be destabilizing to victims whenever those 
     victims are depicted in sexual digital forgeries against 
     their will, as the privacy of those victims is violated and 
     the victims lose control over their likeness and identity.
       (5) Victims can feel helpless because the victims--
       (A) may not be able to determine who has created the 
     content; and
       (B) do not know how to prevent further disclosure of the 
     digital forgery or how to prevent more forgeries from being 
     made.
       (6) Victims may be fearful of being in public out of 
     concern that individuals the victims encounter have seen the 
     digital forgeries. This leads to social rupture through the 
     loss of the ability to trust, stigmatization, and isolation.
       (7) Victims of non-consensual, sexually intimate digital 
     forgeries may experience depression, anxiety, and suicidal 
     ideation. These victims may also experience the ``silencing 
     effect'' in which the victims withdraw from online spaces and 
     public discourse to avoid further abuse.
       (8) Digital forgeries are often used to--
       (A) harass victims, interfering with their employment, 
     education, reputation, or sense of safety; or
       (B) commit extortion, sexual assault, domestic violence, 
     and other crimes.
       (9) Because of the harms caused by non-consensual, sexually 
     intimate digital forgeries, such digital forgeries are 
     considered to be a form of image-based sexual abuse.
       (c) Civil Action Relating to Disclosure of Intimate 
     Images.--
       (1) Definitions.--Section 1309 of the Consolidated 
     Appropriations Act, 2022 (15 U.S.C. 6851) is amended--
       (A) in the heading, by inserting ``or nonconsensual 
     activity involving digital forgeries'' after ``intimate 
     images''; and
       (B) in subsection (a)--
       (i) in paragraph (2), by inserting ``competent,'' after 
     ``conscious,'';
       (ii) by redesignating paragraphs (5) and (6) as paragraphs 
     (6) and (7), respectively;
       (iii) by redesignating paragraph (3) as paragraph (5);
       (iv) by inserting after paragraph (2) the following:
       ``(3) Digital forgery.--
       ``(A) In general.--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, 
     that, when viewed as a whole by a reasonable person, is 
     indistinguishable from an authentic visual depiction of the 
     individual.
       ``(B) Labels, disclosure, and context.--Any visual 
     depiction described in subparagraph (A) constitutes a digital 
     forgery for purposes of this paragraph regardless of whether 
     a label, information disclosed with the visual depiction, or 
     the context or setting in which the visual depiction is 
     disclosed states or implies that the visual depiction is not 
     authentic.'';
       (v) in paragraph (5), as so redesignated--

       (I) by striking ``(5) Depicted'' and inserting ``(5) 
     Identifiable''; and
       (II) by striking ``depicted individual'' and inserting 
     ``identifiable individual''; and

       (vi) in paragraph (6)(A), as so redesignated--

       (I) in clause (i), by striking ``; or'' and inserting a 
     semicolon;
       (II) in clause (ii)--

       (aa) in subclause (I), by striking ``individual;'' and 
     inserting ``individual; or''; and
       (bb) by striking subclause (III); and

       (III) by adding at the end the following:

       ``(iii) an identifiable individual engaging in sexually 
     explicit conduct; and''.
       (2) Civil action.--Section 1309(b) of the Consolidated 
     Appropriations Act, 2022 (15 U.S.C. 6851(b)) is amended--
       (A) in paragraph (1)--
       (i) 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 or possession with intent to disclose, disclosure, 
     or solicitation;
       ``(II) the person knew or recklessly disregarded that the 
     identifiable individual did not consent to such production or 
     possession with intent to disclose, disclosure, or 
     solicitation; 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--

       ``(aa) did not consent to such production; and
       ``(bb) was harmed, or was reasonably likely to be harmed, 
     by the 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

       (ii) 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'';

       (B) in paragraph (2)--
       (i) 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

       (ii) in subparagraph (B)--

       (I) by inserting ``identifiable'' before individual;
       (II) by inserting ``or digital forgery'' after each place 
     the term ``depiction'' appears; and
       (III) by inserting ``, solicitation, or possession'' after 
     ``disclosure'';

       (C) by redesignating paragraph (4) as paragraph (5);
       (D) by striking paragraph (3) and inserting the following:
       ``(3) Relief.--
       ``(A) In general.--In a civil action filed under this 
     section, an identifiable individual may recover--
       ``(i) damages as provided under subparagraph (C); and
       ``(ii) the cost of the action, including reasonable 
     attorney fees and other litigation costs reasonably incurred.
       ``(B) Punitive damages and other relief.--The court may, in 
     addition to any other relief available at law, award punitive 
     damages or order equitable relief, including a temporary 
     restraining order, a preliminary injunction, or a permanent 
     injunction ordering the defendant to delete, destroy, or 
     cease display or disclosure of the intimate visual depiction 
     or digital forgery.
       ``(C) Damages.--For purposes of subparagraph (A)(i), the 
     identifiable individual may recover--
       ``(i) liquidated damages in the amount of--

       ``(I) $150,000; or
       ``(II) $250,000 if the conduct at issue in the claim was--

       ``(aa) committed in relation to actual or attempted sexual 
     assault, stalking, or harassment of the identifiable 
     individual by the defendant; or
       ``(bb) the direct and proximate cause of actual or 
     attempted sexual assault, stalking, or harassment of the 
     identifiable individual by any person; or
       ``(ii) actual damages sustained by the individual, which 
     shall include any profits of the defendant that are 
     attributable to the conduct at issue in the claim that are 
     not otherwise taken into account in computing the actual 
     damages.
       ``(D) Calculation of defendant's profit.--For purposes of 
     subparagraph (C)(ii), to establish the defendant's profits, 
     the identifiable individual shall be required to present 
     proof only of the gross revenue of the defendant, and the 
     defendant shall be required to prove the deductible expenses 
     of the defendant and the elements of profit attributable to 
     factors other than the conduct at issue in the claim.
       ``(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.'';
       (E) in paragraph (5)(A), as so redesignated--
       (i) by striking ``image'' and inserting ``visual depiction 
     or digital forgery''; and

[[Page S4761]]

       (ii) by striking ``depicted'' and inserting 
     ``identifiable''; and
       (F) 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.''.
       (3) Continued applicability of federal, state, and tribal 
     law.--
       (A) In general.--This section shall not be construed to 
     impair, supersede, or limit a provision of Federal, State, or 
     Tribal law.
       (B) No preemption.--Nothing in this section shall prohibit 
     a State or Tribal government from adopting and enforcing a 
     provision of law governing disclosure of intimate images or 
     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 section, 
     that is at least as protective of the rights of a victim as 
     this section.
       (d) Severability.--If any provision of this section, an 
     amendment made by this section, 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 section, and the application of the 
     provision or amendment held to be unconstitutional to any 
     other person or circumstance, shall not be affected thereby.
                                 ______