II 118th CONGRESS 2d Session S. 4409 IN THE SENATE OF THE UNITED STATES May 23, 2024 Ms. Hassan (for herself, Mr. Cornyn , Ms. Butler , and Mr. King ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit the disclosure of intimate digital depictions, and for other purposes.

1. Short title This Act may be cited as the Preventing Deepfakes of Intimate Images Act . 2. Civil action relating to disclosure of intimate digital depictions Section 1309 of the Violence Against Women Act Reauthorization Act of 2022 ( 15 U.S.C. 6851 ) is amended— (1) in the heading, by striking images and inserting depictions ; (2) in subsection (a)— (A) by redesignating paragraphs (2), (3), (4), (5), and (6) as paragraphs (3), (5), (6), (9), and (10), respectively; (B) by inserting after paragraph (1) the following: (2) 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 of title 18, United States Code; (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) ). ; (C) by inserting after paragraph (3), as so redesignated, the following: (4) Covered intimate depiction The term covered intimate depiction means an intimate visual depiction or an intimate digital depiction. ; (D) in paragraph (5), as so redesignated— (i) by striking means and inserting the following— (A) with respect to an intimate visual depiction, means ; (ii) by striking in an intimate visual depiction and inserting in the intimate visual depiction ; (iii) by striking the visual depiction and inserting the intimate visual depiction ; (iv) by striking the period at the end and inserting ; and ; and (v) by adding at the end the following: (B) with respect to an intimate digital depiction, means an individual who, as a result of digitization or by means of digital manipulation, appears in whole or in part in the intimate digital depiction and who is identifiable by virtue of the individual’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature, or from information displayed in connection with the intimate digital depiction. ; (E) by inserting after paragraph (6), as so redesignated, the following: (7) Information content provider The term information content provider has the meaning given the term in section 230 of the Communications Act of 1934 ( 47 U.S.C. 230 ). (8) Intimate digital depiction The term intimate digital depiction means a realistic visual depiction, as that term is defined in section 2256(5) of title 18, United States Code, of an individual that has been created or altered using digitization or digital manipulation and that depicts— (A) the uncovered genitals, pubic area, anus, or postpubescent female nipple of an identifiable individual; (B) the display or transfer of bodily sexual fluids— (i) onto any part of the body of an identifiable individual; or (ii) from the body of an identifiable individual; or (C) an identifiable individual engaging in sexually explicit conduct. ; and (F) in paragraph (9), as so redesignated— (i) in subparagraph (A)— (I) in clause (i), by striking or at the end; (II) in clause (ii)(I), by adding or at the end; (III) by redesignating subclause (III) of clause (ii) as clause (iii) and adjusting the margin accordingly; and (IV) in clause (iii), as so redesignated, by striking conduct and and inserting conduct; and ; and (ii) in subparagraph (B)(ii), by inserting give before consent ; and (3) in subsection (b)— (A) in paragraph (1)— (i) in subparagraph (A)— (I) by inserting after whose intimate visual depiction is disclosed, the following: or who is the subject of an intimate digital depiction that is disclosed, ; and (II) by striking consented and inserting given consent ; and (ii) in subparagraph (B)— (I) by striking an individual and inserting a depicted individual ; (II) by striking the individual and inserting the depicted individual ; (III) by striking identifiable individual's and inserting depicted individual's ; and (IV) by striking identifiable individual's' and inserting depicted individual's ; (B) in paragraph (2)— (i) in subparagraph (A)— (I) by striking consented each place it appears and inserting gave consent ; (II) by inserting covered intimate before depiction ; and (III) by striking distribution; and and inserting disclosure; ; (ii) by redesignating subparagraph (B) as subparagraph (C); (iii) by inserting after subparagraph (A) the following: (B) consent shall be deemed validly given only if it is set forth in an agreement that— (i) is written in plain language signed knowingly and voluntarily by the depicted individual; and (ii) includes a general description of the covered intimate depiction and, if applicable, the audiovisual work into which it will be incorporated; and ; and (iv) in subparagraph (C), as so redesignated— (I) by striking intimate visual each place it appears and inserting covered intimate ; and (II) by striking person consented and inserting individual gave consent ; (C) in paragraph (3)(A)— (i) by striking clause (i) and inserting the following: (i) an individual may recover— (I) an amount equal to the monetary gain made by the defendant from the disclosure of the covered intimate depiction; (II) either— (aa) the actual damages sustained by the individual as a result of the disclosure of the covered intimate depiction, including damages for emotional distress; or (bb) liquidated damages in the amount of $150,000; (III) punitive damages; and (IV) the cost of the action, including reasonable attorney fees and other litigation costs reasonably incurred; and ; and (ii) in clause (ii), by striking visual ; (D) in paragraph (4)— (i) in the matter preceding subparagraph (A), by striking An identifiable individual and inserting A depicted individual ; (ii) in subparagraph (A), by striking an intimate image and inserting a covered intimate depiction ; (iii) in subparagraph (C), by striking public concern or public interest and inserting legitimate public concern or public interest, except that it shall not be considered a matter of legitimate public interest or public concern solely because the depicted individual is a public figure ; and (iv) in subparagraph (D), by striking identifiable individual and inserting depicted individual ; and (E) by adding at the end the following: (5) In camera A court may authorize an in camera proceeding under this subsection. (6) Disclaimers It shall not be a defense to an action under this subsection that there is a disclaimer stating that the covered intimate depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material. (7) Limitations For purposes of this subsection, a provider of a communications service shall not be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of a covered intimate depiction; or (B) any action taken to enable or make available to information content providers or other persons the technical means to restrict access to a covered intimate depiction. . 3. Criminal action (a) In general Chapter 110 of title 18, United States Code, is amended by inserting after section 2252C the following: 2252D. Disclosure of intimate digital depictions (a) Definitions (1) Definitions of terms defined in civil action statute In this section, the terms communications service , consent , depicted individual , disclose , information content provider , and sexually explicit conduct have the meanings given those terms in section 1309 of the Violence Against Women Act Reauthorization Act of 2022 ( 15 U.S.C. 6851 ). (2) Other terms In this section: (A) Covered digital depiction The term covered digital depiction means— (i) an intimate digital depiction; or (ii) a digital depiction of a nude minor. (B) Digital depiction of a nude minor The term digital depiction of a nude minor means any digital visual depiction (as that term is defined in section 2256(5))— (i) of an individual who— (I) is recognizable by an individual other than the depicted individual from the visual depiction itself or information or text displayed in connection with the visual depiction; and (II) was under 18 years of age when the visual depiction was created; and (ii) in which the anus, genitals, or pubic area, or post-pubescent female nipple, of the depicted individual are unclothed, visible, and displayed in a manner that does not constitute sexually explicit conduct. (C) Intimate digital depiction The term intimate digital depiction has the meaning given the term in section 1309 of the Violence Against Women Act Reauthorization Act of 2022 ( 15 U.S.C. 6851 ), except that it only includes such a depiction of an individual who was not less than 18 years of age when the depiction was created. (b) Offenses (1) Intimate digital depictions Except as provided in paragraph (3), it shall be unlawful to knowingly disclose or threaten to disclose, through the mail or using any means or facility of interstate or foreign commerce or affecting interstate or foreign commerce, an intimate digital depiction of an individual— (A) with knowledge of, or reckless disregard for, the lack of consent of the depicted individual to the disclosure of the intimate digital depiction; (B) with knowledge of, or reckless disregard for, the lack of consent of the depicted individual to the creation of the intimate digital depiction; (C) with intent to harass, annoy, threaten, alarm, or cause substantial harm to the finances or reputation of the depicted individual; or (D) with actual knowledge that, or reckless disregard for whether, the disclosure or threatened disclosure will cause physical, emotional, reputational, or economic harm to the depicted individual. (2) Digital depictions of nude minors Except as provided in paragraph (3), 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 digital 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. (3) Exceptions (A) Law enforcement, lawful reporting, and other legal proceedings Paragraphs (1) and (2)— (i) do 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; (ii) 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 (iii) shall not apply in the case of a good faith and relevant document production or filing associated with a legal proceeding. (B) Service providers Paragraphs (1) and (2) shall not apply to any provider of a communications service with regard to content provided by another information content provider, unless— (i) in the case of an intimate digital depiction, the provider of the communications service distributes the intimate digital depiction with knowledge of the lack of consent of the depicted individual; or (ii) in the case of a digital depiction of a nude minor, the provider of the communications service knowingly distributes the digital depiction of a nude minor. (C) Matters of public concern Paragraphs (1) and (2) shall not apply with respect to a covered digital depiction that is a matter of public concern. (D) Support for victims Paragraphs (1) and (2) shall not apply to the distribution of a covered digital depiction if the distribution is made reasonably and in good faith to— (i) seek support or help with respect to the unsolicited receipt of the covered digital depiction; or (ii) assist the depicted individual. (c) Penalties (1) Fine and imprisonment Any person who violates subsection (b) shall be— (A) fined under this title, imprisoned for not more than 2 years, or both; or (B) fined under this title, imprisoned for not more than 10 years, or both, in the case of a violation in which the disclosure or threatened disclosure of the covered digital depiction could be reasonably expected to— (i) affect the conduct of any administrative, legislative, or judicial proceeding of a Federal, State, local, or Tribal government agency, including the administration of an election or the conduct of foreign relations; or (ii) facilitate violence. (2) Forfeiture (A) In general The court, in imposing a sentence on any person convicted of a violation of subsection (b), 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 subsection; (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 property, real or personal, used or intended to be used to commit or 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) of this paragraph. (3) Restitution Section 2264 shall apply to an offense under subsection (b) of this section in the same manner as such section 2264 applies to an offense under chapter 110A. (d) Disclaimers It shall not be a defense to a prosecution under this section that there is a disclaimer stating that the covered digital depiction of the depicted individual was unauthorized or that the depicted individual did not participate in the creation or development of the material. (e) Limitations For purposes of this section, a provider of a communications service shall not be held liable on account of— (1) any action voluntarily taken in good faith to restrict access to or availability of a covered digital depiction; or (2) any action taken to enable or make available to an information content provider or another person the technical means to restrict access to a covered digital depiction. . (b) Clerical amendment The table of sections for chapter 110 of title 18, United States Code, is amended by inserting after the item relating to section 2252C the following: 2252D. Disclosure of intimate digital depictions. .