II 117th CONGRESS 2d Session S. 5259 IN THE SENATE OF THE UNITED STATES December 14, 2022 Mr. Lee introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require certain interactive computer services to adopt and operate technology verification measures to ensure that users of the platform are not minors, and for other purposes.

1. Short title This Act may be cited as the Shielding Children's Retinas from Egregious Exposure on the Net Act or the SCREEN Act . 2. Findings; sense of Congress (a) Findings Congress finds the following: (1) Over the 3 decades preceding the date of enactment of this Act, Congress has passed several bills to protect minors from access to online pornographic content, including title V of the Telecommunications Act of 1996 ( Public Law 104–104 ) (commonly known as the Communications Decency Act ), section 231 of the Communications Act of 1934 ( 47 U.S.C. 231 ) (commonly known as the Child Online Protection Act ), and the Children’s Internet Protection Act (title XVII of division B of Public Law 106–554 ). (2) With the exception of the Children's Internet Protection Act (title XVII of division B of Public Law 106–554 ), the Supreme Court of the United States has struck down the previous efforts of Congress to shield children from pornographic content, finding that such legislation constituted a compelling government interest but that it was not the least restrictive means to achieve such interest. In Ashcroft v. ACLU, 542 U.S. 656 (2004), the Court even suggested at the time that blocking and filtering software could conceivably be a primary alternative to the requirements passed by Congress. (3) In the nearly 2 decades since the Supreme Court of the United States suggested the use of blocking and filtering software , such technology has proven to be ineffective in protecting minors from accessing online pornographic content. The Kaiser Family Foundation has found that filters do not work on 1 in 10 pornography sites accessed intentionally and 1 in 3 pornography sites that are accessed unintentionally. Further, it has been proven that children are able to bypass blocking and filtering software by employing strategic searches or measures to bypass the software completely. (4) Additionally, Pew Research has revealed studies showing that only 39-percent of parents use blocking or filtering software for their minor’s online activities, meaning that 61-percent of children only have restrictions on their internet access when they are at school or at a library. (5) 17 States have now recognized pornography as a public health hazard that leads to a broad range of individual harms, societal harms, and public health impacts. (6) It is estimated that 80-percent of minors between the ages of 12 to 17 have been exposed to pornography, with 54-percent of teenagers seeking it out. The internet is the most common source for minors to access pornography with pornographic websites receiving more web traffic in the United States than Twitter, Netflix, Pinterest, and LinkedIn combined. (7) Exposure to online pornography has created unique psychological effects for minors, including anxiety, addiction, low self-esteem, body image disorders, an increase in problematic sexual activity at younger ages, and an increased desire among minors to engage in risky sexual behavior. (8) The Supreme Court of the United States has recognized on multiple occasions that Congress has a compelling government interest to protect the physical and psychological well-being of minors, which includes shielding them from indecent content that may not necessarily be considered obscene by adult standards. (9) Because blocking and filtering software has not produced the results envisioned nearly 2 decades ago, it is necessary for Congress to pursue alternative policies to enable the protection of the physical and psychological well-being of minors. (10) The evolution of our technology has now enabled the use of age verification technology that is cost efficient, not unduly burdensome, and can be operated narrowly in a manner that ensures only adults have access to a website’s online pornographic content. (b) Sense of Congress It is the sense of Congress that— (1) shielding minors from access to online pornographic content is a compelling government interest that protects the physical and psychological well-being of minors; and (2) requiring interactive computer services that are in the business of creating, hosting, or making available pornographic content to enact technological measures that shield minors from accessing pornographic content on their platforms is the least restrictive means for Congress to achieve its compelling government interest. 3. Definitions In this Act: (1) Child pornography; minor The terms child pornography and minor have the meanings given those terms in section 2256 of title 18, United States Code. (2) Commission The term Commission means the Federal Communications Commission. (3) Covered platform The term covered platform — (A) means an entity— (i) that is an interactive computer service; (ii) that— (I) is engaged in interstate or foreign commerce; or (II) purposefully avails itself of the United States market or a portion thereof; and (iii) for which it is in the regular course of the trade or business of the entity to create, host, or make available content that meets the definition of harmful to minors under paragraph (4) and that is provided by the entity, a user, or other information content provider, with the objective of earning a profit; and (B) includes an entity described in subparagraph (A) regardless of whether— (i) the entity earns a profit on the activities described in subparagraph (A)(iii); or (ii) creating, hosting, or making available content that meets the definition of harmful to minors under paragraph (4) is the sole source of income or principal business of the entity. (4) Harmful to minors The term harmful to minors , with respect to a picture, image, graphic image file, film, videotape, or other visual depiction, means that the picture, image, graphic image file, film, videotape, or other depiction— (A) (i) taken as a whole and with respect to minors, appeals to the prurient interest in nudity, sex, or excretion; (ii) depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious, literary, artistic, political, or scientific value as to minors; (B) is obscene; or (C) is child pornography. (5) Information content provider; interactive computer service The terms information content provider and interactive computer service have the meanings given those terms in section 230(f) of the Communications Act of 1934 ( 47 U.S.C. 230(f) ). (6) Sexual act; sexual contact The terms sexual act and sexual contact have the meanings given those terms in section 2246 of title 18, United States Code. (7) Technology verification measure The term technology verification measure means technology that— (A) employs a system or process to determine whether it is more likely than not that a user of a covered platform is a minor; and (B) prevents access by minors to any content on a covered platform. 4. Technology verification measures (a) Rule making The Commission shall— (1) not later than 30 days after the date of enactment of this Act, issue a notice of proposed rule making to require covered platforms to adopt and operate technology verification measures on the platform to ensure that— (A) users of the covered platform are not minors; and (B) minors are prevented from accessing any content on the covered platform that is harmful to minors; and (2) not later than 1 year after issuing the notice of proposed rule making under paragraph (1), issue the final rule. (b) Requirements The rule described in subsection (a) shall— (1) set the applicable verification standards and metrics to which a covered platform using a technology verification measure is required to adhere when determining whether it is more likely than not that a user of the covered platform is not a minor; (2) require covered platforms to— (A) adopt technology verification measures that adhere to the standards and metrics set by the Commission under paragraph (1); and (B) make publicly available the verification process that the covered platform is employing to comply with the requirements under this Act; (3) provide that requiring a user to confirm that the user is not a minor shall not be sufficient to satisfy the requirements under subparagraphs (A) and (B) of subsection (a)(1); (4) subject the Internet Protocol (IP) addresses of all users, including known virtual proxy network IP addresses, of a covered platform to the requirements described in subparagraphs (A) and (B) of subsection (a)(1) unless the covered platform (or third-party described in paragraph (6)), according to standards set by the Commission, determines based on available technology a user is not located within the United States; (5) permit covered platforms to choose the technology verification measure that ensures the verification of users in accordance with the standards and metrics set by the Commission under paragraph (1), provided that the technology verification measure employed by the covered platform prohibits a minor from accessing the platform or any information on the platform that is obscene, child pornography, or harmful to minors; (6) permit covered platforms to contract with a third-party to employ a technology verification measures, and provide that use of such a third-party shall not relieve the covered platform of the requirements under subparagraphs (A) and (B) of subsection (a)(1) or the enforcement actions described in section 6; (7) require the Commission to establish a process for each covered platform to submit only such documents or other materials as are necessary for the Commission to ensure full compliance with the requirements of the rule; and (8) require the Commission to— (A) conduct regular audits of covered platforms to ensure compliance with the requirements under this subsection; and (B) make public the terms and processes for the audits conducted under subparagraph (A), including the processes for any third-party conducting an audit on behalf of the Commission. (c) Compliance (1) Deadline Not later than 180 days after the date on which the final rule is issued under subsection (a)(2), each covered platform shall comply with the requirements under the final rule. (2) Appropriate documents, materials, and measures The Commission shall prescribe the appropriate documents, materials, or other measures required to ensure full compliance with the requirements of the final rule issued under subsection (a)(2). (d) Contracting with third parties The Commission may create a process to contract with independent third-party auditors to conduct regular audits on behalf of the Commission under subsection (b)(8). (e) Rule of construction Nothing in this section shall be construed to require a covered platform to submit any information that identifies, is linked to, or is reasonably linkable to a user of the covered platform or a device that is linked or reasonable linkable to a user of the covered platform. 5. Consultation requirements In issuing the rule required under section 4, the Commission shall consult with the following individuals, including with respect to the applicable standards and metrics for making a determination on whether it is more likely than not that a user of a covered platform is not a minor: (1) Individuals with experience in computer science and software engineering. (2) Individuals with experience in— (A) advocating for online child safety; or (B) providing services to minors who have been victimized by online child exploitation. (3) Individuals with experience in consumer protection and online privacy. (4) Individuals who supply technology verification measure products or have expertise in technology verification measure solutions. (5) Individuals with experience in data security and cryptography. 6. Civil penalty for violations (a) Notification If the Commission has a sound basis to conclude that a covered platform has violated the final rule issued under section 4, the Commission shall notify the covered platform with a brief description of the specific violation with recommended measures to correct the violation. (b) Penalty (1) In general A covered platform that has not provided evidence of compliance or corrected a violation that has been noticed by the Commission under subsection (a) within 72 hours of the receipt of such notice shall be subject to a civil penalty in an amount that is not more than $25,000 per violation. (2) Separate violations For the purposes of paragraph (1), each day of violation of the final rule issued under section 4 shall constitute a separate violation. (3) Appeal A covered platform may appeal any civil penalty issued by the Commission under this subsection in an appropriate district court of the United States. (4) Use of amounts Any amounts collected under this subsection shall be used by the Commission to carry out enforcement of the final rule issued under section 4. (c) Enforcement The Commission may— (1) file a claim in an appropriate district court of the United States to enforce this section; (2) seek a temporary or permanent injunction from an appropriate district court of the United States on such terms as the court deems reasonable to prevent or restrain a violation of the final rule issued under section 4; (3) after 30 days of non-compliance with section 4 and a demonstration of a lack of good faith on the part of the covered platform to comply with section 4, seek a permanent or temporary injunction to restrict the operation of the covered platform within the United States; and (4) after 30 days of non-compliance with section 4 and a demonstration of a lack of good faith on the part of the covered platform to comply with section 4, seek an order to allow the Commission to prohibit a covered platform from engaging in any online economic transactions within the United States. (d) Duration The terms of an injunction or an order issued under paragraph (2), (3), or (4) of subsection (c) with respect to a covered platform shall only be valid until such time as the covered platform demonstrates to the Commission full compliance with the requirements of the final rule issued under section 4. 7. GAO report Not later than 2 years after the date on which covered platforms are required to comply with the final rule issued under section 4(a)(2), the Comptroller General of the United States shall submit to Congress a report that includes— (1) an analysis of the effectiveness of the technology verification measures required under the final rule; (2) recommendations to the Commission for improvements to the final rule; and (3) recommendations to Congress on future legislative improvements. 8. Severability clause If any provision of this Act, or the application of such a provision to any person or circumstance, is held to be unconstitutional, the remaining provisions of this Act, and the application of such provisions to any other person or circumstance, shall not be affected thereby.