[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require agencies to include a list of outdated or duplicative reporting 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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