II Calendar No. 78 118th CONGRESS 1st Session S. 412 IN THE SENATE OF THE UNITED STATES February 14, 2023 Ms. Klobuchar (for herself, Mr. Cornyn , Mr. Lee , Mr. Blumenthal , Mr. Graham , Mr. Cruz , and Mr. Durbin ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary May 17, 2023 Reported by Mr. Durbin , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To provide that it is unlawful to knowingly distribute private intimate visual depictions with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.

1. Short title This Act may be cited as the Stopping Harmful Image Exploitation and Limiting Distribution Act of 2023 or the SHIELD Act of 2023 . 2. Certain activities relating to intimate visual depictions (a) In general Chapter 88 of title 18, United States Code, is amended by adding at the end the following: 1802. Certain activities relating to intimate visual depictions (a) Definitions In this section: (1) Communications service The term communications service means— (A) a service provided by a person that is a common carrier, as that term is defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 ), insofar as the person is acting as a common carrier; (B) an electronic communication service, as that term is defined in section 2510; (C) an information service, as that term is defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 ); and (D) an interactive computer service, as that term is defined in section 230(f) of the Communications Act of 1934 ( 47 U.S.C. 230(f) ). (2) Information content provider The term information content provider has the meaning given that term in section 230(f) of the Communications Act of 1934 ( 47 U.S.C. 230(f) ). (3) Intimate visual depiction The term intimate visual depiction means any visual depiction (as that term is defined in section 2256(5)) of an individual who is recognizable by an individual other than the depicted individual from the intimate image itself or information or text displayed in connection with the intimate image itself or information or text displayed in connection with the intimate image who has attained 18 years of age at the time the intimate visual depiction is created and— (A) who is depicted engaging in sexually explicit conduct; or (B) whose genitals, anus, pubic area, or female nipple are unclothed and visible. (4) Visual depiction of a nude minor The term visual depiction of a nude minor means any visual depiction (as that term is defined in section 2256(5)) of an individual who is recognizable by an individual other than the depicted individual from the intimate image itself or information or text displayed in connection with the intimate image who was under 18 years of age at the time the visual depiction was created in which the actual anus, genitals, or pubic area, or post-pubescent female nipple, of the minor are unclothed, visible, and displayed in a manner that does not constitute sexually explicit conduct. (5) Sexually explicit conduct The term sexually explicit conduct has the meaning given that term in section 2256(2)(A). (b) Offense (1) In general Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, an intimate visual depiction of an individual— (A) with knowledge of or reckless disregard for the lack of consent of the individual to the distribution; (B) where what is depicted was not voluntarily exposed by the individual in a public or commercial setting; and (C) where what is depicted is not a matter of public concern. For purposes of this paragraph, the fact that the subject of the depiction consented to the creation of the depiction shall not establish that that person consented to its distribution. (2) Minors Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, a visual depiction of a nude minor with intent to abuse, humiliate, harass, or degrade the minor, or to arouse or gratify the sexual desire of any person. (c) Penalty (1) In general Any person who violates subsection (b), or attempts or conspires to do so, shall be fined under this title, imprisoned not more than 5 years, or both. (2) Forfeiture (A) In general The court, in imposing a sentence on any person convicted of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, or convicted of a conspiracy of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States— (i) any material distributed in violation of this section; (ii) such person’s interest in property, real or personal, constituting or derived from any gross proceeds of such violation, or any property traceable to such property, obtained or retained directly or indirectly as a result of such violation; and (iii) any property, real or personal, used or intended to be used to commit or to facilitate the commission of such offense. (B) Procedures Section 413 of the Controlled Substances Act ( 21 U.S.C. 853 ), with the exception of subsections (a) and (d), applies to the criminal forfeiture of property pursuant to subparagraph (A). (3) Restitution Restitution shall be available as provided in section 2264 of title 18, United States Code. (d) Exceptions (1) Law enforcement, lawful reporting, and other legal proceedings This section— (A) does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States; (B) shall not apply in the case of an individual acting in good faith to report unlawful activity or in pursuance of a legal or professional or other lawful obligation; and (C) shall not apply in the case of a document production or filing associated with a legal proceeding. (2) Service providers This section shall not apply to any provider of a communications service with regard to content provided by another information content provider unless the provider of the communications service intentionally solicits, or knowingly and predominantly distributes, such content. (e) Threats Any person who threatens to commit an offense under subsection (b) shall be punished as provided in subsection (c). (f) Extraterritoriality There is extraterritorial Federal jurisdiction over an offense under this section if the defendant or the depicted individual is a citizen or permanent resident of the United States. (g) Civil forfeiture The following shall be subject to forfeiture to the United States in accordance with provisions of chapter 46 and no property right shall exist in them: (1) Any material distributed in violation of this chapter. (2) Any property, real or personal, that was used, in any manner, to commit or to facilitate the commission of a violation involving intimate visual depictions or visual depictions of a nude minor under this section or a conspiracy of a violation involving intimate visual depictions or visual depictions of a nude minor under this section. (3) Any property, real or personal, constituting, or traceable to the gross proceeds obtained or retained in connection with or as a result of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, a conspiracy of a violation involving intimate visual depictions or visual depictions of a nude minor under this section. (h) Rule of construction Nothing in this section shall be construed to limit the application of any other relevant law, including section 2252 of this title. . (b) Clerical amendment The table of sections for chapter 88 of title 18, United States Code, is amended by inserting after the item relating to section 1801 the following: 1802. Certain activities relating to intimate visual depictions. .

1. Short title This Act may be cited as the Stopping Harmful Image Exploitation and Limiting Distribution Act of 2023 or the SHIELD Act of 2023 . 2. Certain activities relating to intimate visual depictions (a) In general Chapter 88 of title 18, United States Code, is amended by adding at the end the following: 1802. Certain activities relating to intimate visual depictions (a) Definitions In this section: (1) Communications service The term communications service means— (A) a service provided by a person that is a common carrier, as that term is defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 ), insofar as the person is acting as a common carrier; (B) an electronic communication service, as that term is defined in section 2510; (C) an information service, as that term is defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 ); and (D) an interactive computer service, as that term is defined in section 230(f) of the Communications Act of 1934 ( 47 U.S.C. 230(f) ). (2) Information content provider The term information content provider has the meaning given that term in section 230(f) of the Communications Act of 1934 ( 47 U.S.C. 230(f) ). (3) Intimate visual depiction The term intimate visual depiction means any visual depiction (as that term is defined in section 2256(5)) of an individual who is recognizable by an individual other than the depicted individual from the intimate image itself or information or text displayed in connection with the intimate image who has attained 18 years of age at the time the intimate visual depiction is created and— (A) who is depicted engaging in sexually explicit conduct; or (B) whose genitals, anus, pubic area, or female nipple are unclothed and visible. (4) Visual depiction of a nude minor The term visual depiction of a nude minor means any visual depiction (as that term is defined in section 2256(5)) of an individual who is recognizable by an individual other than the depicted individual from the intimate image itself or information or text displayed in connection with the intimate image who was under 18 years of age at the time the visual depiction was created in which the actual anus, genitals, or pubic area, or post-pubescent female nipple, of the minor are unclothed, visible, and displayed in a manner that does not constitute sexually explicit conduct. (5) Sexually explicit conduct The term sexually explicit conduct has the meaning given that term in section 2256(2)(A). (b) Offenses (1) In general Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to knowingly distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, an intimate visual depiction of an individual— (A) with knowledge of the lack of consent of the individual to the distribution; (B) where what is depicted was not voluntarily exposed by the individual in a public or commercial setting; and (C) where what is depicted is not a matter of public concern. For purposes of this paragraph, the fact that the subject of the depiction consented to the creation of the depiction shall not establish that that person consented to its distribution. (2) Minors Except as provided in subsection (d), it shall be unlawful to knowingly mail, or to knowingly distribute using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, a visual depiction of a nude minor with intent to abuse, humiliate, harass, or degrade the minor, or to arouse or gratify the sexual desire of any person. (c) Penalty (1) In general Any person who violates subsection (b), or attempts or conspires to do so, shall be fined under this title, imprisoned not more than 5 years, or both. (2) Forfeiture (A) In general The court, in imposing a sentence on any person convicted of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, or convicted of a conspiracy of a violation involving intimate visual depictions or visual depictions of a nude minor under this section, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person forfeit to the United States— (i) any material distributed in violation of this section; (ii) such person’s interest in property, real or personal, constituting or derived from any gross proceeds of such violation, or any property traceable to such property, obtained or retained directly or indirectly as a result of such violation; and (iii) any property, real or personal, used or intended to be used to commit or to facilitate the commission of such offense. (B) Procedures Section 413 of the Controlled Substances Act ( 21 U.S.C. 853 ), with the exception of subsections (a) and (d), applies to the criminal forfeiture of property pursuant to subparagraph (A). (3) Restitution Restitution shall be available as provided in section 2264 of this title. (d) Exceptions (1) Law enforcement, lawful reporting, and other legal proceedings This section— (A) does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States; (B) shall not apply in the case of an individual acting in good faith to report unlawful or unsolicited activity or in pursuance of a legal or professional or other lawful obligation; and (C) shall not apply in the case of a document production or filing associated with a legal proceeding. (2) Service providers This section shall not apply to any provider of a communications service with regard to content provided by another information content provider unless the provider of the communications service intentionally solicits, or knowingly and predominantly distributes, such content. (e) Threats Any person who threatens to commit an offense under subsection (b) shall be punished as provided in subsection (c). (f) Extraterritoriality There is extraterritorial Federal jurisdiction over an offense under this section if the defendant or the depicted individual is a citizen or permanent resident of the United States. (g) Rule of construction Nothing in this section shall be construed to limit the application of any other relevant law, including section 2252 of this title. . (b) Clerical amendment The table of sections for chapter 88 of title 18, United States Code, is amended by inserting after the item relating to section 1801 the following: 1802. Certain activities relating to intimate visual depictions. . (c) Conforming amendment Section 2264(a) of title 18, United States Code, is amended by inserting , or under section 1802 of this title before the period.

May 17, 2023 Reported with an amendment