END CSAM Act

Subjects: Science, Technology, Communications


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 823 Introduced in Senate (IS)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                 S. 823

To hold social media companies liable for hosting or distributing child 
                         sexual abuse material.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 15, 2023

  Mr. Hawley introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To hold social media companies liable for hosting or distributing child 
                         sexual abuse material.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Everyone can Notice-and-Takedown 
Distribution of Child Sexual Abuse Material Act'' or the ``END CSAM 
Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Child sexual abuse material.--The term ``child sexual 
        abuse material'' has the meaning given the term ``child 
        pornography'' in section 2256 of title 18, United States Code.
            (2) Covered interactive computer service.--The term 
        ``covered interactive computer service'' means an interactive 
        computer service--
                    (A) provided through a website, online application, 
                or mobile application (including a single interactive 
                computer service that is provided through more than one 
                such website or application);
                    (B) through which information provided by another 
                information content provider is distributed;
                    (C) that enables an individual user to create an 
                account for the purpose of viewing, generating, or 
                modifying content that can be viewed, shared, or 
                otherwise interacted with by other third-party users of 
                the interactive computer service; and
                    (D) that does not have peer-to-peer messaging as 
                its principal function.
            (3) Interactive computer service.--The term ``interactive 
        computer service'' has the meaning given the term in section 
        230 of the Communications Act of 1934 (47 U.S.C. 230).
            (4) Minor.--The term ``minor'' has the meaning given the 
        term in section 2256 of title 18, United States Code.
            (5) Social media company.--The term ``social media 
        company''--
                    (A) means a company that provides, in or affecting 
                interstate or foreign commerce, a covered interactive 
                computer service; and
                    (B) does not include an organization described in 
                section 501(c) of the Internal Revenue Code of 1986 and 
                exempt from taxation under section 501(a) of such Code.

SEC. 3. CIVIL LIABILITY FOR SOCIAL MEDIA COMPANIES HOSTING PROHIBITED 
              CONTENT.

    (a) Prohibition.--It shall be unlawful for a social media company 
to knowingly or recklessly host or distribute child sexual abuse 
material.
    (b) Civil Penalty.--A social media company that violates subsection 
(a) shall be liable to the United States Government for a civil penalty 
of not less than $100,000 and not more than $500,000, in accordance 
with this Act.

SEC. 4. NOTICE PROCESS FOR COMPANIES HOSTING PROHIBITED CONTENT.

    (a) In General.--A social media company shall--
            (1) provide a notice process for persons to make the 
        company aware that the company is hosting or distributing 
        content in apparent violation of section 3(a); and
            (2)(A) designate an agent of the company to receive notice 
        under the notice process described in paragraph (1); and
            (B) make available on the website, web service, or web 
        application of the company, in a location accessible to the 
        public, the name, address, phone number, and electronic mail 
        address of the agent designated under subparagraph (A).
    (b) Notice Process Requirements.--The notice process required under 
subsection (a) shall readily enable a person to provide to the agent 
designated under subsection (a)(2) substantially the following:
            (1) Identification of each visual depiction claimed to be 
        child sexual abuse material.
            (2) Information reasonably sufficient to permit the agent 
        receiving the notice to contact the person, such as an address, 
        telephone number, or electronic mail address.
            (3) A brief statement that--
                    (A) affirms that the person has a good faith belief 
                that each visual depiction described in paragraph (1) 
                is child sexual abuse material; and
                    (B) explains why the person has that belief.
    (c) Liability Protection for Disabling Access to or Removing Visual 
Depiction.--
            (1) In general.--Except as provided in paragraph (2), a 
        social media company shall not be liable for any claim based on 
        the company's good faith disabling of access to, or removal of, 
        a visual depiction that the company believes is child sexual 
        abuse material.
            (2) No protection for disabling access or removing more 
        than 10 days after receiving notice.--Paragraph (1) shall not 
        apply with respect to a visual depiction that a social media 
        company disables access to or removes if the company--
                    (A) was notified about the visual depiction under 
                the notice process required under subsection (a); and
                    (B) failed to disable access to or remove the 
                visual depiction during the 10-day period beginning on 
                the date of the notice described in subparagraph (A).
    (d) Lack of Notice Not an Excuse for Violation.--It shall not be a 
defense to an alleged violation of section 3(a) that a social media 
company did not receive notice of the alleged violation under the 
notice process required under subsection (a) of this section.
    (e) Determination by Social Media Company That Visual Depiction Is 
Not Child Sexual Abuse Material.--If a social media company receives 
notice of an alleged violation of section 3(a) under the notice process 
required under subsection (a) of this section and determines that the 
content alleged to be hosted or distributed in violation of section 
3(a) is not child sexual abuse material, the company shall, not later 
than the last day of the 10-day period beginning on the date of the 
notice, submit to the person who provided the notice a response that--
            (1) confirms receipt of the notice;
            (2) states that the company determined that the content is 
        not child sexual abuse material; and
            (3) provides an explanation for the determination described 
        in paragraph (2), including any relevant evidence.

SEC. 5. QUI TAM CIVIL ACTION.

    (a) Actions by Private Persons.--
            (1) Right of action.--
                    (A) In general.--If a person provides notice to a 
                social media company regarding a visual depiction under 
                the notice process required under section 4(a) and the 
                social media company does not disable access to or 
                remove the visual depiction during the 10-day period 
                beginning on the date of the notice, the person may 
                bring an action for the person and for the United 
                States Government to recover a civil penalty under 
                section 3(b) against the social media company for 
                violating section 3(a).
                    (B) Action in name of government.--An action under 
                subparagraph (A) shall be brought in the name of the 
                Government.
            (2) Service on government; election to intervene.--
                    (A) Service on government.--A copy of the complaint 
                and written disclosure of substantially all material 
                evidence and information the person possesses, 
                including any evidence and information received under 
                section 4(e), shall be served on the Government 
                pursuant to Rule 4(i) of the Federal Rules of Civil 
                Procedure.
                    (B) Election to intervene.--Not later than 30 days 
                after the Government receives both the complaint and 
                the material evidence and information under 
                subparagraph (A), the Government shall--
                            (i) intervene and proceed with the action, 
                        in which case the action shall be solely 
                        conducted by the Government; or
                            (ii) notify the court that the Government 
                        declines to take over the action, in which case 
                        the person bringing the action shall have the 
                        right to conduct the action.
            (3) No intervention or related actions by other parties.--
        When a person brings an action under this subsection, no person 
        other than the Government may intervene or bring a related 
        action based on the facts underlying the pending action.
    (b) Rights of the Parties to Qui Tam Actions.--
            (1) Government prosecution.--If the Government proceeds 
        with an action under subsection (a)--
                    (A) the Government--
                            (i) shall have the sole responsibility for 
                        prosecuting the action, subject to paragraph 
                        (2); and
                            (ii) shall not be bound by an act of the 
                        person bringing the action; and
                    (B) the person who initiated the action shall not 
                have the right to continue as a party to the action.
            (2) Limitation on dismissal by government.--The Government 
        may dismiss an action brought under subsection (a) if the 
        Government determines, based on a thorough and good faith 
        examination of the material evidence and information presented 
        to the Government, that the content alleged to be hosted or 
        distributed in violation of section 3(a) is not child sexual 
        abuse material.
            (3) Limitation on settlement by government.--The Government 
        may settle an action brought under subsection (a) with the 
        defendant if the court determines, after a hearing, that the 
        proposed settlement is fair, adequate, and reasonable under all 
        the circumstances.
            (4) Private prosecution.--
                    (A) In general.--If the Government elects not to 
                proceed with an action under subsection (a), the person 
                who initiated the action shall have the right to 
                conduct the action.
                    (B) Provision of case documents.--If the Government 
                so requests, the Government shall be served with copies 
                of all pleadings filed in the action and shall be 
                supplied with copies of all deposition transcripts (at 
                the Government's expense).
    (c) Award to Qui Tam Plaintiff.--
            (1) Government prosecution.--If the Government proceeds 
        with an action brought by a person under subsection (a)--
                    (A) the person shall receive not less than 25 
                percent of the proceeds of the action;
                    (B) any payment to the person under subparagraph 
                (A) shall be made from the proceeds of the action;
                    (C) the person shall also receive an amount for 
                reasonable expenses that the court finds to have been 
                necessarily incurred, plus reasonable attorneys' fees 
                and costs; and
                    (D) all expenses, fees, and costs described in 
                subparagraph (C) shall be awarded against the 
                defendant.
            (2) Private prosecution.--If the Government does not 
        proceed with an action under subsection (a)--
                    (A) the person bringing the action or settling the 
                claim shall receive not less than 50 percent of the 
                proceeds of the action or settlement of the claim;
                    (B) any payment to the person under subparagraph 
                (A) shall be made from the proceeds of the action;
                    (C) the person shall also receive an amount for 
                reasonable expenses that the court finds to have been 
                necessarily incurred, plus reasonable attorneys' fees 
                and costs; and
                    (D) all expenses, fees, and costs described in 
                subparagraph (C) shall be awarded against the 
                defendant.
            (3) Unclean hands.--
                    (A) Reduction in share of proceeds for qui tam 
                plaintiff.--Whether or not the Government proceeds with 
                an action under subsection (a), if the court finds that 
                the action was brought by a person who planned and 
                initiated the violation of section 3(a) upon which the 
                action was brought, then the court may, to the extent 
                the court considers appropriate, reduce the share of 
                the proceeds of the action that the person would 
                otherwise receive under paragraph (1) or (2) of this 
                subsection, taking into account the role of the person 
                in advancing the case to litigation and any relevant 
                circumstances pertaining to the violation.
                    (B) Criminal conviction.--
                            (i) Dismissal of party.--If the person 
                        bringing an action under subsection (a) is 
                        convicted of criminal conduct arising from the 
                        person's role in the violation of section 3(a), 
                        the person--
                                    (I) shall be dismissed from the 
                                action; and
                                    (II) may not receive any share of 
                                the proceeds of the action.
                            (ii) Right of government to continue 
                        action.--A dismissal under clause (i) shall not 
                        prejudice the right of the United States to 
                        continue the action, represented by the 
                        Department of Justice.
            (4) Award of attorneys' fees and costs to defendant.--If 
        the Government does not proceed with an action under subsection 
        (a) and the person bringing the action conducts the action, the 
        court may award to the defendant its reasonable attorneys' fees 
        and expenses if the defendant prevails in the action.
    (d) Certain Actions Barred.--A person may not bring an action under 
subsection (a) that is based on allegations that are the subject of a 
civil action to which the Government is already a party.
    (e) Dismissal by Court.--The court shall dismiss an action or claim 
brought under subsection (a) if, as determined based on facts found by 
the court, the content alleged to be hosted or distributed in violation 
of section 3(a) is not child sexual abuse material.
    (f) Government Not Liable for Certain Expenses.--The Government is 
not liable for expenses that a person incurs in bringing an action 
under subsection (a).
    (g) Relation to Section 230 of the Communications Act of 1934.--
Nothing in section 230 of the Communications Act of 1934 (47 U.S.C. 
230) shall be construed to impair or limit any claim in a civil action 
brought under this section.
                                 &lt;all&gt;
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