[Congressional Record Volume 170, Number 120 (Wednesday, July 24, 2024)]
[Senate]
[Pages S5396-S5397]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3080. Mr. CRUZ submitted an amendment intended to be proposed by
him to the bill S. 2073, to amend title 31, United States Code, to
require agencies to include a list of outdated or duplicative reporting
requirements in annual budget justifications, and for other purposes;
which was ordered to lie on the table; as follows:
At the end, add the following:
TITLE IV--TAKE IT DOWN ACT
SEC. 401. SHORT TITLE.
This title may be cited as the ``Tools to Address Known
Exploitation by Immobilizing Technological Deepfakes on
Websites and Networks Act'' or the ``TAKE IT DOWN Act''.
SEC. 402. CRIMINAL PROHIBITION ON INTENTIONAL DISCLOSURE OF
NONCONSENSUAL INTIMATE VISUAL DEPICTIONS.
(a) In General.--Section 223 of the Communications Act of
1934 (47 U.S.C. 223) is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following:
``(h) Intentional Disclosure of Nonconsensual Intimate
Visual Depictions.--
``(1) Definitions.--In this subsection:
``(A) Consent.--The term `consent' means an affirmative,
conscious, and voluntary authorization made by an individual
free from force, fraud, duress, misrepresentation, or
coercion.
``(B) Deepfake.--The term `deepfake' means a video or image
that is generated or substantially modified using machine-
learning techniques or any other computer-generated or
machine-generated means to falsely depict an individual's
appearance or conduct within an intimate visual depiction.
``(C) Identifiable individual.--
``(i) In general.--The term `identifiable individual' means
an individual--
``(I) who appears in whole or in part in an intimate visual
depiction; and
``(II) whose face, likeness, or other distinguishing
characteristic (including a unique birthmark or other
recognizable feature) is displayed in connection with such
intimate visual depiction.
``(ii) Appears.--For purposes of clause (i), an individual
appears in an intimate visual depiction if--
``(I) the individual is actually the individual identified
in the intimate visual depiction; or
``(II) a deepfake of the individual is used to
realistically depict the individual such that a reasonable
person would believe the individual is actually depicted in
the intimate visual depiction.
``(D) Interactive computer service.--The term `interactive
computer service' has the meaning given the term in section
230.
``(E) Intimate visual depiction.--The term `intimate visual
depiction' has the meaning given such term in section 1309 of
the Consolidated Appropriations Act, 2022 (15 U.S.C. 6851).
``(F) Minor.--The term `minor' means any individual under
the age of 18 years.
``(2) Offense.--
``(A) Involving adults.--Except as provided in subparagraph
(C), it shall be unlawful for any person, in interstate or
foreign commerce, to use an interactive computer service to
knowingly publish an intimate visual depiction of an
identifiable individual who is not a minor if--
``(i) the intimate visual depiction was obtained or created
under circumstances in which the person knew or reasonably
should have known the identifiable individual had a
reasonable expectation of privacy;
``(ii) what is depicted was not voluntarily exposed by the
identifiable individual in a public or commercial setting;
``(iii) what is depicted is not a matter of public concern;
and
``(iv) publication of the intimate visual depiction--
``(I) is intended to cause harm; or
``(II) causes harm, including psychological, financial, or
reputational harm, to the identifiable individual.
``(B) Involving minors.--Except as provided in subparagraph
(C), it shall be unlawful for any person, in interstate or
foreign commerce, to use an interactive computer service to
knowingly publish an intimate visual depiction of an
identifiable individual who is a minor with intent to--
``(i) abuse, humiliate, harass, or degrade the minor; or
``(ii) arouse or gratify the sexual desire of any person.
``(C) Exceptions.--Subparagraphs (A) and (B) shall not
apply to--
``(i) a lawfully authorized investigative, protective, or
intelligence activity of--
``(I) a law enforcement agency of the United States, a
State, or a political subdivision of a State; or
``(II) an intelligence agency of the United States;
``(ii) a disclosure made reasonably and in good faith--
``(I) to a law enforcement officer or agency;
``(II) as part of a document production or filing
associated with a legal proceeding;
``(III) as part of medical education, diagnosis, or
treatment or for a legitimate medical, scientific, or
education purpose; or
``(IV) in the reporting of unlawful content or unsolicited
or unwelcome conduct or in pursuance of a legal,
professional, or other lawful obligation; or
``(V) to seek support or help with respect to the receipt
of an unsolicited intimate visual depiction;
``(iii) a disclosure reasonably intended to assist the
identifiable individual; or
``(iv) a person who possesses or publishes an intimate
visual depiction of himself or herself engaged in nudity or
sexually explicit conduct (as that term is defined in section
2256(2)(A) of title 18, United States Code).
``(3) Penalties.--
``(A) Offenses involving adults.--Any person who violates
paragraph (2)(A) shall be fined under title 18, United States
Code, imprisoned not more than 2 years, or both.
``(B) Offenses involving minors.--Any person who violates
paragraph (2)(B) shall be fined under title 18, United States
Code, imprisoned not more than 3 years, or both.
``(4) Rules of construction.--For purposes of paragraph
(2)--
[[Page S5397]]
``(A) the fact that the identifiable individual provided
consent for the creation of the intimate visual depiction
shall not establish that the individual provided consent for
the publication of the intimate visual depiction; and
``(B) the fact that the identifiable individual disclosed
the intimate visual depiction to another individual shall not
establish that the identifiable individual provided consent
for the publication of the intimate visual depiction by the
person alleged to have violated paragraph (2).
``(5) Threats.--Any person who intentionally threatens to
commit an offense under paragraph (2) for the purpose of
intimidation, coercion, extortion, or to create mental
distress shall be punished as provided in paragraph (3).
``(6) Forfeiture.--
``(A) In general.--The court, in imposing a sentence on any
person convicted of a violation of subparagraph (2), shall
order, in addition to any other sentence imposed and
irrespective of any provision of State law, that the person
forfeit to the United States--
``(i) any material distributed in violation of that
paragraph;
``(ii) the person's interest in property, real or personal,
constituting or derived from any gross proceeds of the
violation, or any property traceable to such property,
obtained or retained directly or indirectly as a result of
the 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 the violation.
``(B) Procedures.--Section 413 of the Controlled Substances
Act (21 U.S.C. 853), with the exception of subsections (a)
and (d), shall apply to the criminal forfeiture of property
under subparagraph (A).
``(7) Restitution.--The court shall order restitution for
an offense under paragraph (2) in the same manner as under
section 2264 of title 18, United States Code.''.
(b) Defenses.--Section 223(e)(1) of the Communications Act
of 1934 (47 U.S.C. 223(e)(1)) is amended by striking ``or
(d)'' and inserting ``, (d), or (h)''.
(c) Technical and Conforming Amendment.--Subsection (i) of
section 223 of the Communications Act of 1934 (47 U.S.C.
223), as so redesignated by subsection (a), is amended by
inserting ``Definitions.--'' before ``For purposes of this
section''.
SEC. 403. NOTICE AND REMOVAL OF NONCONSENSUAL INTIMATE VISUAL
DEPICTIONS.
(a) In General.--
(1) Notice and removal process.--
(A) Establishment.--Not later than 1 year after the date of
enactment of this Act, a covered platform shall establish a
process whereby an identifiable individual (or an authorized
representative of such individual) may--
(i) notify the covered platform of an intimate visual
depiction published on the covered platform that--
(I) includes a depiction of the identifiable individual;
and
(II) was published without the consent of the identifiable
individual; and
(ii) submit a request for the covered platform to remove
such intimate visual depiction.
(B) Requirements.--A notification and request for removal
of an intimate visual depiction submitted under the process
established under subparagraph (A) shall include, in
writing--
(i) a physical or electronic signature of the identifiable
individual (or an authorized representative of such
individual);
(ii) an identification of the intimate visual depiction of
the identifiable individual; and
(iii) a brief statement that the identifiable individual
has a good faith belief that any intimate visual depiction
identified under clause (ii) is not consensual, including any
relevant information for the covered platform to determine
the intimate visual depiction was published without the
consent of the identifiable individual.
(2) Notice of process.--A covered platform shall provide on
the platform a clear and conspicuous notice of the notice and
removal process established under paragraph (1)(A).
(3) Removal of nonconsensual intimate visual depictions.--
Upon receiving a valid removal request from an identifiable
individual (or an authorized representative of such
individual) using the process described in paragraph
(1)(A)(ii), a covered platform shall remove the intimate
visual depiction and make reasonable efforts to remove any
identical copies of such depiction as soon as possible, but
not later than 48 hours after receiving such request.
(4) Limitation on liability.--A covered platform shall not
be liable for any claim based on the covered platform's good
faith disabling of access to, or removal of, material claimed
to be a nonconsensual intimate visual depiction based on
facts or circumstances from which the unlawful publishing of
an intimate visual depiction is apparent, regardless of
whether the intimate visual depiction is ultimately
determined to be unlawful or not.
(b) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
this section shall be treated as a violation of a rule
defining an unfair or a deceptive act or practice under
section 18(a)(1)(B) of the Federal Trade Commission Act (15
U.S.C. 57a(a)(1)(B)).
(2) Powers of the commission.--
(A) In general.--Except as provided in subparagraph (D),
the Commission shall enforce this section in the same manner,
by the same means, and with the same jurisdiction, powers,
and duties as though all applicable terms and provisions of
the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were
incorporated into and made a part of this section.
(B) Privileges and immunities.--Any person who violates
this title shall be subject to the penalties and entitled to
the privileges and immunities provided in the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(C) Authority preserved.--Nothing in this title shall be
construed to limit the authority of the Commission under any
other provision of law.
(D) Scope of jurisdiction.--Notwithstanding sections 4,
5(a)(2), or 6 of the Federal Trade Commission Act (15 U.S.C.
44, 45(a)(2), 46), or any jurisdictional limitation of the
Commission, the Commission shall also enforce this section in
the same manner provided in subparagraph (A), with respect to
organizations that are not organized to carry on business for
their own profit or that of their members.
SEC. 404. DEFINITIONS.
In this title:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Consent; deepfake; identifiable individual; intimate
visual depiction.--The terms ``consent'', ``deepfake'',
``identifiable individual'', ``intimate visual depiction'',
and ``minor'' have the meaning given such terms in section
223(h) of the Communications Act of 1934 (47 U.S.C. 223), as
added by section 402.
(3) Covered platform.--
(A) In general.--The term ``covered platform'' means a
website, online service, online application, or mobile
application that--
(i) serves the public; and
(ii) primarily provides a forum for user-generated content,
including messages, videos, images, games, and audio files.
(B) Exclusions.--The term ``covered platform'' shall not
include the following:
(i) A provider of broadband internet access service (as
described in section 8.1(b) of title 47, Code of Federal
Regulations, or successor regulation).
(ii) Electronic mail.
(iii) An online service, application, or website--
(I) that consists primarily of content that is not user
generated but is preselected by the provider of such online
service, application, or website; and
(II) for which any chat, comment, or interactive
functionality is incidental to, directly related to, or
dependent on the provision of the content described in
subclause (I).
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