II

105TH CONGRESS

2D SESSION S. 2103

To provide protection from personal intrusion for commercial purposes.

IN THE SENATE OF THE UNITED STATES

MAY 20, 1998

Mrs. FEINSTEIN (for herself, Mr. HATCH, and Mrs. BOXER) introduced the

following bill; which was read twice and referred to the Committee on the

Judiciary

A BILL

To provide protection from personal intrusion for commercial

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Personal Privacy Pro5 tection Act’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress makes the following find8 ings:

9 (1) Individuals and their families have been

10 harassed and endangered by being persistently fol-
2

•S 2103 IS

1 lowed or chased in a manner that puts them in rea2 sonable fear of bodily injury, and in danger of seri3 ous bodily injury or even death, by photographers,

4 videographers, and audio recorders attempting to

5 capture images or other reproductions of their pri6 vate lives for commercial purposes.

7 (2) The legitimate privacy interests of individ8 uals and their families have been violated by photog9 raphers, videographers, and audio recorders who

10 physically trespass in order to capture images or

11 other reproductions of their private lives for com12 mercial purposes, or who do so constructively

13 through intrusive modern visual or auditory en14 hancement devices, such as powerful telephoto lenses

15 and hyperbolic microphones that enable invasion of

16 private areas that would otherwise be impossible

17 without trespassing.

18 (3) Such harassment and trespass threatens not

19 only professional public persons and their families,

20 but also private persons and their families for whom

21 personal tragedies or circumstances beyond their

22 control create media interest.

23 (4) Federal legislation is necessary to protect

24 individuals and their families from persistent follow25 ing or chasing for commercial purposes that causes
3

•S 2103 IS

1 reasonable fear of bodily injury, because such har2 assment is not directly regulated by applicable Fed3 eral, State, and local statutory or common laws, be4 cause those laws provide an uneven patchwork of

5 coverage, and because those laws may not cover such

6 activities when undertaken for commercial purposes.

7 (5) Federal legislation is necessary to prohibit

8 and provide proper redress in Federal courts for

9 trespass and constructive trespass using intrusive

10 visual or auditory enhancement devices for commer11 cial purposes, because technological advances such

12 as telephoto lenses and hyperbolic microphones

13 render inadequate existing common law and State

14 and local regulation of such trespass and invasion of

15 privacy.

16 (6) There is no right, under the first amend17 ment to the Constitution of the United States, to

18 persistently follow or chase another in a manner

19 that creates a reasonable fear of bodily injury, to

20 trespass, or to constructively trespass through the

21 use of intrusive visual or auditory enhancement de22 vices.

23 (7) This Act, and the amendments made by this

24 Act, do not in any way regulate, prohibit, or create

25 liability for publication or broadcast of any image or
4

•S 2103 IS

1 information, but rather use narrowly tailored means

2 to prohibit and create liability for specific dangerous

3 and intrusive activities that the Federal Government

4 has an important interest in preventing, and ensure

5 a safe and secure private realm for individuals

6 against intrusion, which the Federal Government

7 has an important interest in ensuring.

8 (8) This Act protects against unwarranted har9 assment, endangerment, invasion of privacy, and

10 trespass in an appropriately narrowly tailored man11 ner without abridging the exercise of any rights

12 guaranteed under the first amendment to the Con13 stitution of the United States, or any other provision

14 of law.

15 (9) Congress has the affirmative power under

16 section 8 of article I of the Constitution of the

17 United States to enact this Act.

18 (10) Because this Act regulates only conduct

19 undertaken in order to create products intended to

20 be and routinely transmitted, bought, or sold in

21 interstate or foreign commerce, or persons who trav22 el in interstate or foreign commerce in order to en23 gage in regulated conduct, the Act is limited prop24 erly to regulation of interstate or foreign commerce.
5

•S 2103 IS

1 (11) Photographs and other reproductions of

2 the private activities of persons obtained through ac3 tivities regulated by this Act, and the amendments

4 made by this Act, are routinely reproduced and

5 broadcast in interstate and international commerce.

6 (12) Photographers, videographers, and audio

7 recorders routinely travel in interstate commerce in

8 order to engage in the activities regulated by this

9 Act, and the amendments made by this Act, with the

10 intent, expectation, and routine result of gaining

11 material that is bought and sold in interstate com12 merce.

13 (13) The activities regulated by this Act, and

14 the amendments made by this Act, occur routinely

15 in the channels of interstate commerce, such as the

16 persistent following or chasing of subjects in an in17 appropriate manner on public streets and thorough18 fares or in airports, and the use of public streets

19 and thoroughfares, interstate and international air20 ports, and travel in interstate and international wa21 ters in order to physically or constructively trespass

22 for commercial purposes.

23 (14) The activities regulated by this Act, and

24 the amendments made by this Act, substantially af25 fect interstate commerce by threatening the careers,
6

•S 2103 IS

1 livelihoods, and rights to publicity of professional

2 public persons in the national and international

3 media, and by thrusting private persons into the na4 tional and international media.

5 (15) The activities regulated by this Act, and

6 the amendments made by this Act, substantially af7 fect interstate commerce by restricting the move8 ment of persons who are targeted by such activities

9 and their families, often forcing them to curtail trav10 el or appearances in public spaces, or, conversely,

11 forcing them to travel in interstate commerce in

12 order to escape from abuses regulated by this Act,

13 and the amendments made by this Act.

14 (b) PURPOSES.—The purposes of this Act are—

15 (1) to protect individuals and their families

16 against reasonable fear of bodily injury,

17 endangerment, trespass, and intrusions on their pri18 vacy due to activities undertaken in connection with

19 interstate and international commerce in reproduc20 tion and broadcast of their private activities;

21 (2) to protect interstate commerce affected by

22 such activities, including the interstate commerce of

23 individuals who are the subject of such activities;

24 and
7

•S 2103 IS

1 (3) to establish the right of private parties in2 jured by such activities, as well as the Attorney Gen3 eral of the United States and State attorneys gen4 eral in appropriate cases, to bring actions for appro5 priate relief.

6 SEC. 3. CRIMINAL OFFENSE.

7 (a) IN GENERAL.—Chapter 89 of title 18, United

8 States Code, is amended by adding at the end the follow9 ing:

10 ‘‘§ 1822. Harassment for commercial purposes

11 ‘‘(a) DEFINITIONS.—In this section:

12 ‘‘(1) FOR COMMERCIAL PURPOSES.—

13 ‘‘(A) IN GENERAL.—The term ‘for com14 mercial purposes’ means with the expectation of

15 sale, financial gain, or other consideration.

16 ‘‘(B) RULE OF CONSTRUCTION.—For pur17 poses of this section, a visual image, sound re18 cording, or other physical impression shall not

19 be found to have been, or intended to have

20 been, captured for commercial purposes unless

21 it was intended to be, or was in fact, sold, pub22 lished, or transmitted in interstate or foreign

23 commerce, or unless the person attempting to

24 capture such image, recording, or impression

25 moved in interstate or foreign commerce in
8

•S 2103 IS

1 order to capture such image, recording, or im2 pression.

3 ‘‘(2) HARASSES.—The term ‘harasses’ means

4 persistently physically follows or chases a person in

5 a manner that causes the person to have a reason6 able fear of bodily injury, in order to capture by a

7 visual or auditory recording instrument any type of

8 visual image, sound recording, or other physical im9 pression of the person for commercial purposes.

10 ‘‘(b) PROHIBITION AND PENALTIES.—Whoever

11 harasses any person within the United States or the spe12 cial maritime and territorial jurisdiction of the United

13 States—

14 ‘‘(1) if death is proximately caused by such har15 assment, shall be imprisoned not less than 20 years

16 and fined under this title;

17 ‘‘(2) if serious bodily injury is proximately

18 caused by such harassment, shall be imprisoned not

19 less than 5 years and fined under this title; and

20 ‘‘(3) if neither death nor serious bodily injury

21 is proximately caused by such harassment, shall be

22 imprisoned not more than 1 year, fined under this

23 title, or both.

24 ‘‘(c) CAUSE OF ACTION.—Any person who is legally

25 present in the United States and who is subjected to a
9

•S 2103 IS

1 violation of this section may, in a civil action against the

2 person engaging in the violation, obtain any appropriate

3 relief, including compensatory damages, punitive damages,

4 and injunctive and declaratory relief. In any civil action

5 or proceeding to enforce a provision of this section, the

6 court shall allow the prevailing party reasonable attorney’s

7 fees as part of the costs. In awarding attorney’s fees, the

8 court shall include expert fees as part of the attorney’s

9 fees.

10 ‘‘(d) LIMITATION ON DEFENSES.—It is not a defense

11 to a prosecution or civil action under this section that—

12 ‘‘(1) no image or recording was captured; or

13 ‘‘(2) no image or recording was sold.

14 ‘‘(e) USE OF IMAGES.—Nothing in this section may

15 be construed to make the sale, transmission, publication,

16 broadcast, or use of any image or recording of the type

17 or under the circumstances described in this section in any

18 otherwise lawful manner by any person subject to criminal

19 charge or civil liability.

20 ‘‘(f) LIMITATION.—Only a person physically present

21 at the time of, and engaging or assisting another in engag22 ing in, a violation of this section is subject to criminal

23 charge or civil liability under this section. A person shall

24 not be subject to such charge or liability by reason of the

25 conduct of an agent, employee, or contractor of that per-
10

•S 2103 IS

1 son or because images or recordings captured in violation

2 of this section were solicited, bought, used, or sold by that

3 person.

4 ‘‘(g) LAW ENFORCEMENT EXEMPTION.—The prohi5 bitions of this section do not apply with respect to official

6 law enforcement activities.

7 ‘‘(h) SAVINGS.—Nothing in this section shall be

8 taken to preempt any right or remedy otherwise available

9 under Federal, State or local law.’’.

10 (b) TECHNICAL AMENDMENT.—The analysis for

11 chapter 89 of title 18, United States Code, is amended

12 by adding at the end the following:

‘‘1822. Harassment for commercial purposes.’’.

13 SEC. 4. PERSONAL INTRUSION FOR COMMERCIAL PUR14 POSES.

15 (a) DEFINITION OF FOR COMMERCIAL PURPOSES.—

16 (1) IN GENERAL.—In this section, the term ‘for

17 commercial purposes’ means with the expectation of

18 sale, financial gain, or other consideration.

19 (2) RULE OF CONSTRUCTION.—For purposes of

20 this section, a visual image, sound recording, or

21 other physical impression shall not be found to have

22 been, or intended to have been, captured for com23 mercial purposes unless it was intended to be, or

24 was in fact, sold, published, or transmitted in inter25 state or foreign commerce, or unless the person at-
11

•S 2103 IS

1 tempting to capture such image, recording, or im2 pression moved in interstate or foreign commerce in

3 order to capture such image, recording, or impres4 sion.

5 (b) TRESPASS FOR COMMERCIAL PURPOSES AND IN6 VASION OF LEGITIMATE INTEREST IN PRIVACY FOR COM7 MERCIAL PURPOSES.—

8 (1) TRESPASS FOR COMMERCIAL PURPOSES.—It

9 shall be unlawful to trespass on private property in

10 order to capture any type of visual image, sound re11 cording, or other physical impression of any person

12 for commercial purposes.

13 (2) INVASION OF LEGITIMATE INTEREST IN

14 PRIVACY FOR COMMERCIAL PURPOSES.—It shall be

15 unlawful to capture any type of visual image, sound

16 recording, or other physical impression for commer17 cial purposes of a personal or familial activity

18 through the use of a visual or auditory enhancement

19 device, even if no physical trespass has occurred,

20 if—

21 (A) the subject of the image, sound record22 ing, or other physical impression has a reason23 able expectation of privacy with respect to the

24 personal or familial activity captured; and
12

•S 2103 IS

1 (B) the image, sound recording, or other

2 physical impression could not have been cap3 tured without a trespass if not produced by the

4 use of the enhancement device.

5 (c) CAUSE OF ACTION.—Any person who is legally

6 present in the United States who is subjected to a viola7 tion of this section may, in a civil action against the person

8 engaging in the violation, obtain any appropriate relief,

9 including compensatory damages, punitive damages and

10 injunctive and declaratory relief. A person obtaining relief

11 may be either or both the owner of the property or the

12 person whose visual or auditory impression has been cap13 tured. In any civil action or proceeding to enforce a provi14 sion of this section, the court shall allow the prevailing

15 party reasonable attorney’s fees as part of the costs. In

16 awarding attorney’s fees, the court shall include expert

17 fees as part of the attorney’s fees.

18 (d) LIMITATION ON DEFENSES.—It is not a defense

19 to an action under this section that—

20 (1) no image or recording was captured; or

21 (2) no image or recording was sold.

22 (e) USE OF IMAGES.—Nothing in this section may

23 be construed to make the sale, transmission, publication,

24 broadcast, or use of any image or recording of the type

25 or under the circumstances described herein in any other-
13

•S 2103 IS

1 wise lawful manner by any person subject to criminal

2 charge or civil liability.

3 (f) LIMITATION.—Only a person physically present at

4 the time of, and engaging or assisting another in engaging

5 in, a violation of this section is subject to civil liability

6 under this section. A person shall not be subject to such

7 liability by reason of the conduct of an agent, employee,

8 or contractor of that person, or because images or record9 ings captured in violation of this section were solicited,

10 bought, used, or sold by that person.

11 (g) LAW ENFORCEMENT EXEMPTION.—The prohibi12 tions of this section do not apply with respect to official

13 law enforcement activities.

14 (h) SAVINGS.—Nothing in this section shall be taken

15 to preempt any right or remedy otherwise available under

16 Federal, State, or local law.

17 SEC. 5. SEVERABILITY.

18 If any provision of this Act, an amendment made by

19 this Act, or the application of such provision or amend20 ment to any person or circumstance is held to be unconsti21 tutional, the remainder of this Act, the amendments made

22 by this Act, and the application of the provisions of such

23 to any person or circumstance shall not be affected there24 by.

Æ